Data sharing PM is controversial

This week, the Federal Supreme Court received four Direct Actions of Unconstitutionality challenging the provisions of that MP.

Provisional Measure No. 954, published last Friday, 04/17/2020, deals with the availability, by electronic means, by telecommunication companies to IBGE of data on natural and legal persons, including a list of names, telephone numbers and address, with the purpose of producing official statistics through non-face-to-face interviews, during the public health emergency situation caused by the pandemic, with the Institute having the competence to regulate the procedure for making data available, confidentiality guaranteed, use for the purpose specific, prohibition on sharing, elimination after overcoming the circumstances brought about by the new coronavirus and obligation to disclose an impact report on the protection of personal data, according to the LGPD.

This week, the Federal Supreme Court received four Direct Actions of Unconstitutionality challenging provisions of the aforementioned MP, filed by the Federal Council of OAB (ADI 6387) and political parties (ADIs 6388, 6389 and 6390), all of which were reported by Minister Rosa Weber.

The CFOAB maintained that MP 954 “violates the confidentiality of data, including telephone calls, of all Brazilians”, contrary to the guarantee included in item XII, of the Constitution that ensures the inviolability, among others, of the confidentiality of data and telephone communications, so that it would be riddled with formal unconstitutionality, due to the “lack of fulfillment of the constitutional assumptions of urgency and relevance” and material unconstitutionality due to the direct violation of the different articles of CF / 88, which ensure, in addition to data confidentiality, the dignity of the human person the right to informational self-determination and protect privacy and privacy.

As for the relevance requirement, the Federal Council of OAB, at the beginning of ADI 6387, emphasized that “there is no necessary link between the purpose for which the collected data will be used (type and purpose of the research) and the health emergency situation. public “, considering that there is no provision in MP 954 that affirms the use of these data” exclusively for the conduct of urgent research to fundamental right for its realization ”.

Minister Rosa Weber, considering the request for the granting of a preliminary injunction to suspend the effectiveness of the entire content of MP 954, determined that prior information should be requested from IBGE and the National Telecommunications Agency “about the data sharing procedure and the meaning of statistical production official to be carried out in the period of health emergency caused by COVID-19, as defined by MP 954/2020 ”, in addition to granting a common period of 48 hours for the manifestation of AGU and PGR.

In addition, last Wednesday, IBGE published Normative Instruction No. 2/2020 stipulating the procedure for making data available to consumers of switched fixed telephony or personal mobile services, whether these are natural or legal persons, also providing on how transmission of these data and the attribution of technical responsibility to the IBGE’s Informatics Directorate “for the operationalization of data transmission”, with the information being disclosed in the press that the aforementioned Institute would have already officiated companies in this economic sector to make such data available urgently, consequently, expanding the controversy that was established with the publication of the Provisional Measure.

By: Wilson Sales Belchior