UNDERSTAND THE PROVISIONAL MEASURE WHICH REQUESTS DATA SHARING AND ITS DIRECT ACTIONS OF UNCONSTITUTIONALITY

05 May UNDERSTAND THE PROVISIONAL MEASURE WHICH REQUESTS DATA SHARING AND ITS DIRECT ACTIONS OF UNCONSTITUTIONALITY

On April 17, 2020, Provisional Measure No. 954 (“MP 954/2020”), which requests telecommunication companies that provide Telephone Services (“STFC”) and Personal Mobile Service (“SMP”) to share data with the Brazilian Institute of Geography and Statistical (“IBGE”) in order to improve the official statistical production during the internationally relevant public health emergency of COVID-19, was published.

MP 954/2020 obligates telecommunication companies to share personal data with IBGE, such as, names, phone numbers and addresses from their users, without any distinction between physical persons and legal entities. The sharing aims to allow IBGE to perform long-distance interviews during COVD-19 pandemic emergency, which was declared by Law No. 13,979/2020, in order to provide official statistics. By the end of the pandemic, the personal data that were collected must be eliminated, except if needed for the conclusion of a statistical research, is this case the data storage is allowed for thirty (30) additional days.

Considering that the data protection debate has been earning increasing space and relevance in Brazilian legislative context and under the claim that there was a violation to the rights provided in the Brazilian Federal Constitution, which ensure personal human dignity, people’s intimacy, private life, honor and image inviolability, data secrecy and information self-determination, the Brazilian Federal Council Bar Association (“CFOAB”), as well as Partido da Social Democracia Brasileira (“PSDB”), Partido Socialista Brasileiro (“PSB”), Partido Socialismo e Liberdade (“PSOL”) and Partido Comunista do Brasil (“PCdoB”) have presented Direct Action of Unconstitutionality (“ADI”) before the President of the Federal Supreme Court of Brazil, all of them containing a preliminary injunction to halt the efficiency of MP 954/2020.

In addition to constitutional rights violations, the ADI authors claimed that: (i) MP 954/2020 has a generic scope and imprecise purpose, which is in conflict with the purpose principle provided for in article 6^th, I of the Brazilian General Data Protection Regulation (“LGPD”); (ii) when the personal data was collected by the telephone companies, such data was provided for telephone services provision, not for statistical research; (iii) there is a lack of explicit urgency and relevance and a lack of necessity for a statistical research, whose theme was not disclosed; (iv) there is a lack of description of the security measures applicable to such personal data and data sharing, which do not comply with the data quality and security principles provided in article 6^th, V and VII, LGPD; and (v) the lack of measures to prevent damages due to the personal data processing do not comply with the prevention principle, provided for on article 6^th, VIII, LGPD.

On April 20, 2020, the Brazilian National Telecommunications Agency (“Anatel”) decided that the data sharing by telecommunications companies with IBGE, must observe the principles and provisions of the Brazilian Federal Constitution, Telecommunications General Regulation, Information Access Law, LGPD and Decree No. 10,212/2020.

On April 21, 2020, the Ministry of Brazilian Federal Supreme Court (“STF”), Rosa Weber, demanded IBGE and Anatel to provide information over the telephone data sharing proceedings and over the official statistical research to be produced during the sanitary emergency initiated by COVID-19 within forty‑eight (48) hours. The Ministry also requested, on the same date, commentaries from the Federal General Attorney and the Federal Public Prosecutor, within the same forty-eight (48) hours deadline.

On April 22, 2020, Normative Instruction IBGE No. 2/2020, which establishes the proceedings to disclosure data from telecommunication companies that provide fixed or mobile telephone services data to IBGE, in order to improve the official statistical production during the internationally relevant public health emergency situation caused by COVID-19, was published.

After receiving the commentaries from the Federal General Attorney and the Federal Public Prosecutor, on April 24, 2020, Ministry Rosa Weber, granted the five (5) preliminary injunctions from ADIs, halting the MP 954/2020’s efficiency, aiming to prevent irreparable harm to intimacy and private life secrecy, and demanded IBGE not to re/quest any data provided for in the MP 954/2020 and, in case such data had already been requested, to suspend the request, noticing telephone companies immediately.

In her decision, the Ministry highlighted that, in spite of the current sanitary crisis and the need to create public policies that demand specific data to fight COVID-19, there is no legitim public interest on the sharing of personal data from telephone services users and MP 954/2020 does not offer provision for the adequacy and necessity assessment, since it does not define the method and the aim of the use of the data collect, violating the right to the due process of law.

Moreover, the Ministry stressed that the information processed in MP 954/2020 are sheltered under constitutional protection, which encompasses the intimacy, private life, honor and image rights of data subjects. The decision is still to be submitted to the Plenary.

This article is intended exclusively to provide information and does not contain any opinion, recommendation or legal advice from KGV Advogados concerning the matters here addressed. Copyrights are reserved to Kestener, Granja & Vieira Advogados.