Acknowledged the unconstitutionality of a state law on the provision of mobile phone location data

Declaring the formal unconstitutionality of Law No. 6,336 / 2013, of the State of Piauí

The Federal Supreme Court ruled, by majority, in accordance with the vote of the rapporteur, Minister Rosa Weber, proceeding from ADI 5040 / PI, declaring the formal unconstitutionality of Law No. 6,336 / 2013, of the State of Piauí. The rule obliged mobile phone operators to provide public security agencies, without prior judicial authorization, within a maximum period of 36 hours, with the necessary data for locating cell phones and “SIM” cards, upon request by the police authority.

ADI was filed by the National Association of Cellular Operators (ACEL), claiming that constitutional guarantees for the protection of intimacy and privacy (art. 5, X), as well as data and telephone communications secrecy were violated by the state rule ( Article 5, XII). In addition, the invasion of the Union’s private competence to legislate on telecommunications was pointed out (art. 22, IV).

The Rapporteur Minister, in her vote, explained that the Union’s private competence to legislate on telecommunications must be understood based on the ownership of this entity to explore this activity. What follows from the fact that in the Constitution, telecommunications services remain “in the condition of a public service with exclusive material competence of the Union, although exploitation, through concession, permission or authorization, is permitted to individuals”, which occurs in “a marked legal environment complex regulation ”.

It was understood, therefore, that the Law of the State of Piauí “interferes with the provision of the telephone service, a type of the telecommunication genre, whose regulation is the responsibility of the Union”. This is because “the definition of obligations and procedures, within the scope of the provision of public services, cannot take place in an unintegrated way, unrelated to the system as a whole, under penalty of even well-intentioned measures, as they disregard the functioning of the system in the broader level, prove to be not only ineffective, but truly counterproductive in achieving the ends

Position that confirmed the STF’s jurisprudence that there is no constitutional validity in state rules that “have the practical consequence of unduly interfering with individual rights and the structure of public service provision”. What can be observed, for example, in the recognition of the unconstitutionality of state laws providing for the provision of information by a fixed and mobile telephone company for public security purposes (ADI 4401 / MG); installation of equipment to interrupt cellular communication signals in prison establishments (ADI 5356 / MS); creation of an obligation not foreseen in the concession contracts entered into between the Union and the mobile telephone service concessionaires (ADI 5253 / BA); among others.

By: Wilson Sales Belchior