O acesso aos metadados pelos serviços de informações da República Portuguesa, à luz da Lei e da Constituição

• Autor(a) principal: Machado, Mariana Gomes
• Data de Publicação: 2019
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10362/81722
• topic: Direito

The purpose of this paper is to help resolve the following question: Does the Constitution of the Portuguese Republic prohibit access to so-called metadata by the Portuguese Republic's intelligence services for the purpose of preventing and combating terrorism and espionage? Although Organic Law 4/2017, which regulates the special procedure for access to telecommunications and Internet data by SIS and SIED officials, is still in force, the controversy remains, since that law has been subject to of a request for review of constitutionality by 35 deputies of the Portuguese Parliament (still without published judgment), based on the number 4, of article 34 of the Constitution, which prohibits interference in communications, except in cases provided by law in criminal proceedings. This is, therefore, within five years, the second occasion on which the Constitutional Court is mobilized to assess the conformity of such access, which significantly indicates an escalation of the controversy. We can anticipate, right away, that we do not see in the text of the Fundamental Law an insurmountable ban on the aforementioned access. The basis for the negative response to be reached is, first of all, the examination of the constitutional and legal background and evolution of the information services archetype after the 1976 Constitution. On the other hand, for the purpose of understanding the prerogatives and limitations of the current legal regime, the legal framework governing the information services in Germany, Spain, France and the United Kingdom will be addressed. Within this framework, we will come across the case-law of the European Court of Human Rights and the Court of Justice of the European Union with regard to the monitoring of the activity of information services, with particular focus on the parameters of security and privacy. Then, the articles 27th, 1st and 34th of the Constitution will be analyzed in detail. As for the first, it is argued that it provides a fundamental right to security and, as for the second, it is argued that it does not constitute a suitable parameter for the task of assessing the constitutionality of access to metadata, since the protected normative content is only the content of the communications themselves. Nonetheless, we return the degree of interference triggered by access to metadata to the scope of protection of article 26, number 1, of the Constitution, in the segment that protects the reserve of the intimacy of private life. The task of assessing the constitutional conformity of this access is based on a weighing judgment, in the strictness of necessity, adequacy and proportionality, between the right to security and the right to privacy and it is concluded that the restriction arising from access to metadata is proportionate, adequate and necessary.