STF facilitates access by Justice to user data on social networks

The plenary of the Federal Supreme Court (STF) decided, this Thursday (23), that Brazilian authorities can request confidential user data directly from big techs or foreign internet providers with headquarters or representation in Brazil, such as Meta and Google .

Unanimously, the 11 ministers understood that the request for data is already provided for in the Civil Rights Framework for the Internet and can be addressed directly to the representatives of companies in Brazil or, as already occurred, through a cooperation agreement with the United States called MLAT (Mutual Legal Assistance Treaty). The bilateral agreement deals with obtaining private communication content under the control of internet application providers headquartered outside the country.

The action judged by the STF was presented by the Federation of Associations of Information Technology Companies (Assespro Nacional), which asked for the declaration of validity of the MLAT. In the submitted request, Assespro highlighted that it would not be possible to ask affiliated companies in Brazil to comply with court orders that should be made to foreign organizations through an international legal cooperation agreement. “Companies have their own right to the adversarial principle and full defense, within the scope of a peculiar ‘due legal process'”, says the request.

When manifesting itself in the action, the Attorney General’s Office (PGR) defended that restrictions for Brazilian authorities to directly obtain data collected by companies that provide services in the country would generate “immense damage to ongoing investigations and criminal actions already final and unappealable”.

The Ministry of Justice had already classified requests via MLAT as “unsatisfactory” for obtaining this type of information in order to support criminal investigations.

data delivery

A People’s Gazette showed in a report last year that technology companies have refused to deliver the content of their users’ communications, claiming, in general, that those who control this data are their headquarters, which should only respond to orders in their countries of origin. One of the main stakeholders in the controversy is Facebook, which controls WhatsApp, the most popular messaging application in the country.

The branches, agencies or subsidiaries of the big techs installed in Brazil say that they do not have direct access to emails, messages and files that travel on their networks, but only to registration data of users and access to their services – these yes, they claim , can be delivered to the Brazilian Justice as soon as requested by any Brazilian judge.

Companies, therefore, used to maintain that, in order to obtain content, Brazilian judges should resort to the MLAT agreement. With the new understanding of the STF, platforms will have greater difficulty in failing to report data to Justice.

During the trial, some justices mentioned the acts of January 8 when pronouncing their votes. Minister Alexandre de Moraes claimed responsibility for the platforms for the attacks on the buildings of the Planalto Palace, National Congress and STF.

In general, at the request of the Public Ministry or the police, judges determine that companies provide emails, conversations, messages and files exchanged by their users when they can prove crimes such as drug trafficking, homicide, robbery and criminal organization, for example. . More recently, magistrates have demanded from companies, at the request of prosecutors, private communications related to the acts of January 8, the dissemination of possible fake news, hate speech and attacks on institutions, in addition to irregular advertisements in election campaigns.

In a vote-view given in the plenary, Moraes stressed that the MLAT must be applied when it is absolutely impossible for the Brazilian judicial authorities to obtain the data directly. Thus, since it is possible to directly request information based on the Civil Rights Framework for the Internet, this should be the path to be adopted, with the MLAT having a complementary role.

The minister also stressed that requests for information cannot be denied under the justification that the headquarters of the providers is not in Brazil, since the information is transmitted by the Brazilian telecommunications system. Moraes also defended the imposition of a fine in cases of non-compliance.