PGR request on Bolsonaro followers clashes with STF decision

The request by the Attorney General of the Republic (PGR) to Minister Alexandre de Moraes to obtain identification data of all social media users who follow former President Jair Bolsonaro (PL) departs from a recent understanding of the Federal Supreme Court ( STF) on how public bodies should treat personal data.

In September last year, the Court decided that access to such data must have “legitimate, specific and explicit purposes” and be limited to information “indispensable for serving the public interest”.

In the judgment, the ministers also stated that obtaining the data must be compatible with the purposes sought, limited to the “minimum necessary to meet the informed purpose”, in addition to full compliance with the requirements, guarantees and procedures established in the General Law for the Protection of Data. Data, the LGPD, approved in 2018 to safeguard privacy in the digital environment.

This decision adjusted government decrees on the sharing of personal data between different bodies, but ended up serving as a beacon for the treatment of this information by the public sector, especially since a law to discipline the collection for criminal investigations has not yet been approved. In 2020, a commission of jurists presented a draft law on the issue to Congress, but to date nothing has been approved by parliamentarians.

The actions judged by the STF, presented by the OAB and the PSB, pointed to the risk of massive surveillance by the State over citizens, who could be vulnerable to abusive actions.

The problem with the PGR’s request, according to analysts consulted by the report, is the fact that it is generic, does not have a clear motivation and is still unnecessary for the purpose informed by the body. These are requirements not only inscribed in the LGPD, but also demanded by the STF and which are still part of the proposal prepared by jurists in Congress in 2020.

The PGR’s request was made within the scope of the investigation, conducted by Moraes, on the alleged instigators of the demonstration that invaded and destroyed the headquarters of the three Powers, on January 8. Bolsonaro came under investigation because he shared, days after the fact, and later deleted, a video that said that Lula would not have been elected by the Brazilian people, but “chosen by the electoral service, by the ministers of the STF and by the ministers of the Superior Electoral Court” .

In a statement, Bolsonaro said that the post was “accidental” and denied that the objective was to stimulate new demonstrations against Lula’s election.

PGR request

To determine the influence of the former president on the demonstrations, the PGR also asked that technology companies provide the STF with all his posts about elections, electronic voting machines, the Superior Electoral Court, the Federal Supreme Court, and the Armed Forces.

One detail caught the attention of analysts: in the request, the PGR does not exactly specify all the platforms that must provide the information. It says that this information should be requested from companies “providers of social networks” and, in parentheses, it gives some examples, followed by an “etc.”: “Instagram, LinkedIn, Tik Tok, Facebook, Twitter, YouTube etc.”

A lawyer for a large platform, who asked not to be identified, was surprised by the lack of precision, something considered essential in this type of request. In addition, he stated that the LGPD does not oblige companies to keep the information as requested by the PGR.

“The PGR wants companies to produce data that they have no legal obligation to keep. On the contrary. The LGPD determines that only the information necessary for the execution of the application is retained”, said the lawyer.

Moreover, for him, the request is unnecessary. To obtain the number of Bolsonaro’s followers, it would be enough to directly consult the platforms themselves, which usually publicly disclose this information. Obtaining data from all users would go beyond what was necessary to measure the potential reach of the former president’s posts.

Another problem is the format: the PGR asked that the list of users be provided in digital PDF files, a type of document that allows low data handling, especially for a large amount of information, since Bolsonaro has millions of followers in networks.

The request was also seen as heterodox by members of the Public Ministry itself. One of them, who also asked for a reservation, said that it makes no sense to obtain data from all followers to measure reach. “I follow Bolsonaro. You follow Bolsonaro,” he said.

A doctor in Criminal Law, lawyer Acacio Miranda says that, without proper justification, the apprehension of people with the request of the PGR is justified. “It imposes a certain state of awe,” he says.

For him, even if a law has not been approved to regulate how digital information can be obtained for investigations, the Constitution and the currently existing laws already require that a request be well justified. “We already have many mechanisms. But we live in a complex phase, when people think about what they have to do and then create a foundation. Maybe that’s the problem, ”he comments.

Due to the criticism and distrust regarding the request, the PGR informed, in an official statement, that Bolsonaro’s followers will not be investigated. “It is imperative to measure the impact of publications and their respective reach. I would never investigate millions of people, it would even be impossible to do that”, said Carlos Frederico Santos, responsible for conducting investigations at the agency. The PGR recognized that there are people who follow the former president “out of curiosity, information, professional or academic motivation or different interests”.