OAB questions in STF the constitutionality of Decree on data sharing

Decree No. 10,046 / 2019 deals with data sharing in the Federal Public Administration

The Federal Council of the OAB proposed Direct Action of Unconstitutionality questioning Decree No. 10,046 / 2019. ADI 6649 / DF was distributed for prevention to Minister Gilmar Mendes, rapporteur for ADPF 695 / DF, who also addresses issues associated with privacy, protection of personal data, data sharing by the Public Administration and the constitutionality of that decree.

Decree No. 10,046 / 2019 deals with data sharing in the Federal Public Administration, stipulating levels and rules for this procedure. It also institutes the Citizen’s Base Register and the Central Data Governance Committee. The first is intended to create a unified means of citizen identification for the provision of public services and the second is competent to deliberate on guidelines for data sharing and information security policies.

It should be added that Article 2 of Decree No. 10,046 / 2019 presents definitions that clarify the scope of the sharing mentioned above. This includes: (1) biographical attributes – civil or social name, date of birth, affiliation, birthplace, nationality, sex, marital status, family group, address and employment relationships; (2) biometric attributes – biological and behavioral characteristics such as the palm of the hand, fingerprints, retina or iris of the eyes, face shape, voice and gait; (3) registration attributes – CPF, CNPJ, NIS, PIS, Pasep, voter registration number, among others.

In the initial petition of ADI 6649 / DF, formal unconstitutionalities are pointed out, as a result of Decree No. 10,046 / 2019 deals with matters with exclusive competence of law, exceeding the limits of the constitutional regulatory competence, stipulated in article 84, IV and VI, “a”, CF / 1988; and material unconstitutionalities due to violation of fundamental rights to privacy, protection of personal data and informational self-determination (art. 1, caput, III and article 5, caput, X, XII and LXXII, CF / 1988).

It is also indicated that Decree No. 10,046 / 2019 contradicts the decision of the Supreme Federal Court when it analyzed MP No. 954/2020 regarding the sharing of data from users of fixed and mobile telephony services and recognized data protection personal rights and informational self-determination as autonomous fundamental rights. On that occasion, a preventive precautionary measure was approved to suspend the effectiveness of that normative act, aiming at “preventing irreparable damage to the privacy and secrecy of private life”. Therefore, it was understood that there was no legitimate public interest in the sharing of that data, disregard for the guarantee of due legal process, non-compliance with the requirements regarding the effective protection of fundamental rights, non-guarantees of adequate and safe treatment of data and excessive data conservation. personal data collected (ADI 6387 MC-Ref, Rapporteur: Min. Rosa Weber, Full Court, judged on 05/07/2020, DJe 11/11/2020).

Furthermore, it is emphasized, in the initial of ADI 6649 / DF, that Decree No. 10,046 / 2019 organizes “an extremely powerful state surveillance tool, which includes basic personal, family and work information of all Brazilians, but also sensitive personal data , as biometric data ”. In this context, it is argued that the registry and the committee instituted by Decree No. 10,046 / 2019 “disregard the basic principles of the LGPD”, since it regulates “a unified registry that will be shared by the federal public authorities in a practically free way”.

Finally, the granting of a preliminary injunction was required to “immediately suspend the effectiveness of the entirety of Decree No. 10,046 / 2019 […] and the Citizen’s Base Register”, to cease any improper sharing of personal data. On the merits, the ADI was pleaded with the declaration of the unconstitutionality of the referred legal norm and the definitive exclusion of the register and of the committee instituted by it.

Wilson Sales Belchior