September 2019 brought us long-awaited developments regarding the situation of data retention in Portugal. The Justice Ombudsman decided to send the Portuguese data retention law to the Constitutional Court, following the Court of Justice of the European Union’s (CJEU’s) case law on blanket retention of data that lead to invalidation of Directive 2006/24/EC. This decision comes after a complaint presented by EDRi observer Associação D3 – Defesa dos Direitos Digitais, in December 2017.
The Ombudsman had first decided to issue an official recommendation to the government, urging it to propose a legislative solution for the problematic law that originated from the now invalidated Data Retention Directive. Faced with a refusal from the Minister of Justice to find a solution through legislative means, the Ombudsman has now decided to concede to D3’s original request, and has sent the matter for the appreciation of the Constitutional Court, which will have to provide a ruling on the constitutionality of the Portuguese data retention scheme.
A few days later, the same Constitutional Court partially stroke down, for the second time, a law that granted the intelligence services’ access to retained data. In 2015, the Constitutional Court had already declared the unconstitutionality of a similar law, after the president had requested a preventive ruling by the Court before signing it into law. However, in 2017, a new law that addressed some of the problems raised by the Constitutional Court was approved in the Parliament. As the new president opted not to request a preventive decision, the law came into force. 35 Members of the Parliament (MP) from three parties then requested a Constitutional Court ruling on the law, which was now issued.
The fundamental reasoning of this decision is that the Portuguese Constitution forbids public authorities from accessing citizen’s correspondence and telecommunications, except in the context of a criminal procedure. Given that the intelligence services have no criminal procedure competences, they cannot access such data within the existent Constitutional framework. However, the Court did allow access to user location and identification data (in the context of the fight against terrorism and highly organised crime), as such data was not considered to be covered by the secrecy of communications.
This case has also lead to the resignation of the original judge rapporteur due to disagreements related to the reasoning reflected in the final version of the text of the decision.
Associação D3 – Defesa dos Direitos Digitais
Portugal: Data retention sent to the Constitutional Court (07.03.2018)
European Court overturns EU mass surveillance law (08.04.2014)
(Contribution by Eduardo Santos, Associação D3 – Defesa dos Direitos Digitais, Portugal)