II. Surveillance policy
In 1996, a law regulating wiretapping was enacted.1 Official wiretaps are permitted for 15 days, renewable on a judge's order for another 15 days, and can only be resorted to in cases where police suspect serious crimes punishable by imprisonment, such as drug smuggling, corruption, contraband smuggling, murder, and kidnapping. The granting of judicial eavesdropping permits by judges was previously an ad hoc process without any legal basis.2 By now, procedures involving legal wiretapping are treated in confidentiality, which means that access to recordings and transcripts is restricted to the judge and the parties involved in the procedure. Illegal wiretapping by police and intelligence agencies is still common.
In principle, investigative powers to instruct criminal procedures are restricted to the judiciary police, which is an auxiliary body of the Judiciary Branch. The Attorney General's Office (Ministrio Publico) is the entity officially competent to propose criminal actions of a public nature. There is still a controversy, based on different interpretations of the Brazilian Constitution, on whether the Attorney General's Office should be entitled to initiate criminal investigations. Such controversy is under review before the Supreme Court. A decision that would allow prosecution attorneys to promote criminal investigations could weaken privacy rights by allowing privacy violations within the investigations conducted by prosecution attorneys, as long as the judicial control over such investigations is bypassed. On the other hand, a decision denying such investigative powers to prosecution attorneys would certainly nullify several criminal procedures currently initiated and in which such powers have been employed, such as corruption cases involving judges, police chiefs and politicians.
The Federal Penal Code was altered in 2000 to criminalize certain information crimes.3 The insertion of false data into an information system is punishable by a prison sentence of two to 12 years.4 Unauthorized alteration of an information system is punishable by detention from three months to two years.5 The Federal Penal Code and Federal Procedural Penal Code were also altered in July 20036 in order to strengthen sanctions corresponding to the violation of copyrights, and to criminalize the unauthorized distribution of copyrighted works through cable, fiber optics, satellite, radio waves or any other means. Changes in Federal Procedural Penal Code facilitated search and seizure procedures, thereby minimizing the defendant's rights. As a consequence, criminal actions have been initiated by the Brazilian Association of Record Producers (ABPD) against suspects of online music distribution. According to the ABPD's Web site,7 they have been monitoring the Brazilian Internet since 1999 ‚ even before the alterations to Federal Penal Code were enacted, and such practices could represent potential privacy violations, since the intercept of Internet communications is allowed only with a judge's order.8
- 1. Federal Law No. 9,296, July 24, 1996.
- 2. "Brazil Makes Police Phone-Taps Legal," Reuters World Service, July 24, 1996.
- 3. Federal Law No. 9,983, July 14, 2000.
- 4. Id. at Article 313-a.
- 5. Id. at Article 313-b.
- 6. Federal Law No. 10,695, July 1, 2003.
- 7. http://www.abpd.org.br/noticias/noticias_det.asp?cdg=100
- 8. Brazilian Constitution, Title 2, Chapter 1, Article 5, XII.