Lewandowski’s decision in the STF leads to the cancellation of operations – 07/03/2023 – Power

A decision in December last year by the then Minister of the STF (Supreme Federal Court) Ricardo Lewandowski, who retired in April, has led to the annulment of operations in which investigators asked technology companies to preserve data in the cloud of cell phones.

The procedure takes place as follows: when suspecting that an investigated person is committing a crime, the Public Ministry or the police ask the providers to preserve the cloud content of a person’s cell phone or notebook on a certain day and time —which may include information such as location logs, search history, photos and WhatsApp conversations.

Then, with judicial authorization, they gain access to this cloud by breaching confidentiality. For those who work with investigation, this is a means of avoiding the destruction of evidence and has even been done in inquiries conducted by Minister Alexandre de Moraes.

For criminal lawyers, however, the tactic is a scam that prevents the user from having control over their information and a kind of shortcut to obtain evidence that might no longer exist in the case of a search and seizure.

The issue must still be the subject of new discussions at the Supreme Court. In a virtual plenary session of the Second Panel that debated Lewandowski’s decision, which began in April, Minister André Mendonça asked for a view (more time for analysis) and has not yet cast his vote on the case.

In last year’s decision, Lewandowski understood that evidence collected by the Public Ministry of Paraná in an investigation into suspected irregularities in the Detran violated the Constitution and the Civil Rights Framework for the Internet.

“[O Ministério Público] removed from its rightful owner the right to dispose of the content of his data for any purpose, without judicial authorization to do so”, said Lewandowski.

It determines the annulment of the evidence, because otherwise it would be authorizing “the search and prior seizure of contents and their freezing, for later formalization of the measure by court order, in practice prohibited by any standard that is extracted from the current constitutional order”.

In the PF and among members of the Public Ministry, there is a fear that several important investigations, including drug trafficking, sexual crimes via the internet and hate crimes, will be annulled if the former minister’s precedent is maintained.

One of the operations annulled after Lewandowski’s decision is the Federal Police’s Sicários, which arrested the bicheiro Aílton Guimarães Borges, Captain Guimarães, patron of the Vila Isabel samba school.

He is suspected of being the mastermind of a murder that took place in 2020. Guimarães, who is over 80 years old, was placed at home shortly after the arrest, but two execution suspects remained in prison.

Before requesting the breach of confidentiality of data from one of the targets of the operation, the Public Ministry of Rio de Janeiro asked Apple to preserve all data content stored on its platforms, without a prior court decision.

From the cell phone data of one of these targets, investigators identified the list of possible members of the criminal organization, all military and civil police.

On the last 26th, however, the judges of the 5th Criminal Chamber of the Court of Justice of Rio declared that the evidence was worthless, because it was obtained from data preservation without judicial authorization. In practice, this led to the operation being annulled.

In the request that led to the decision of the 5th Chamber, Luiz Felipe Alves, lawyer for the police officer whose cell phone data originated the inquiry, cites Lewandowski’s decision.

According to him, the decision was for “a case identical to the present one”, in which it was “decided due to the impossibility of the Public Ministry to request the preservation of the data content of investigated persons without prior judicial authorization, declaring, in that specific case, null the evidence collected from the prior freezing, without judicial authorization, as well as from all others resulting from it”.

For the president of IBCCRIM (Brazilian Institute of Criminal Sciences), lawyer Renato Vieira, Lewandowski’s decision was correct.

He cites, in particular, an item of the Constitution that states that “the right to the protection of personal data, including in digital media, is guaranteed under the terms of the law”. “Criminal proceedings cannot live with an uncontrolled investigation”, he says.

The institute conducted an event on the topic. The lawyer who spoke in favor of the minister’s decision, the criminalist Pedro Luís Camargo, said that the request for the freezing of data made by the Public Prosecutor’s Office “affects the fundamental right to privacy and the fundamental right to secrecy of communications”.

The prosecutor Fernando Terra disagreed and said that providers such as Google can simply refuse to comply with the Public Ministry’s request and that it must be assumed that there was no bad faith in the conduct of the investigators.

Wanted, Lewandowski did not manifest.