Protection of the Communication and Digital Security of Mobile Phones as a Fundamental Right to Privacy: A Study of the Jurisprudence of the Brazilian Superior Court of Justice

Protection of the Communication and Digital Security of Mobile Phones as a Fundamental Right to Privacy: A Study of the Jurisprudence of the Brazilian Superior Court of Justice

Nestor Eduardo Araruna Santiago (Universidade de Fortaleza, Brazil) and Ana Monica Anselmo Amorim (Universidade de Fortaleza, Brazil)
DOI: 10.4018/978-1-5225-8350-9.ch011
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The central idea of this chapter is to discuss the notion of privacy arising from the use and exchange of messages through the use of mobile phones and whether police officers in charge of patrolling and public security may have access to the messages contained therein without proper judicial authorization. The authors focused on the position of the Brazilian Superior Court of Justice (STJ) on the subject, based on the decision rendered in the Appeal in Habeas Corpus (RHC) n. 51.531/RO. At this trial, protection was given to the new forms of communication and data contained in mobile phones under the constitutional terms of protection of privacy and non-unlawful obtaining of evidence, so that it will be necessary to issue a court order to get any informational elements found in messaging applications installed on a smartphone.
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It should be emphasized that the present work is not intended to exhaust the topic of privacy and intimacy. The notions brought in are necessary to the aspiration of the research, considering that it is essential to conceptualize the right to privacy and intimacy and how it is related to the use of mobile phones. Or, being more specific, how technology is related to privacy and should be protected, taking for granted that this everyday relation brings some concerns, and the answers given by law and lawmakers not always are satisfactory.

Although the day-to-day use of smartphones rises, it seems important to accentuate it does not imply that the owners of this devices should give up the right to privacy. Protecting privacy should not be confused with hiding illicit behavior, once privacy and intimacy (as a narrower approach of privacy) are strictly linked to human dignity, which is protected by the Constitution (Vianna, 2004). The paradox is inevitable: the more we share our life experiences through the internet, the more we need to protect privacy, as it is a way to demonstrate freedom. Technological advances cannot condition the proper protection of freedom (Badaró, 2014; Schreiber, 2016). It is not wrong or exaggerated to say that this is one of humanity's greatest dilemmas today.

We can say that human dignity, treated as a fundamental principle of the federal constitution, can only be considered in its entirety if privacy is assured. The right to be with oneself, to have a right to an intangible sphere, far from the public eye (even to celebrities and public people) is revealed as one of the facets of personality. Of course, the understanding of privacy and intimacy extends also to all the belongings and objects of the human being, since these are often extensions of the personality.

It is well-known that in the chapter devoted to the description of fundamental individual rights in the CF there is the need to protect the confidentiality of correspondence, telegraphic communications, data and telephone communications. The same Constitution considered such inviolable secrets as a means of exercising the right to privacy among private individuals (article 5, item X), it also relativized this protection, allowing the “breach” of confidentiality of telephone communications by means of authorization issued by a judicial authority, in cases and in accordance with the procedure legally established only for purposes of criminal investigation or for criminal procedural instruction. Even if the seized telephone device does not have a password, judicial authorization for its analysis becomes indispensable (Lemos, Caldeira, Quintiere, 2016).

Key Terms in this Chapter

Brazilian Superior Court of Justice (STJ): According to Brazilian Federal Constitution, STJ is the constitutional court, empowered to resolve issues that directly concern constitutional violations.

Habeas Corpus: It is a constitutional writ that seeks to protect the citizen against abuse of state power that curtails his freedom.

Brazilian Supreme Court of Justice (STF): According to Brazilian Federal Constitution, the STJ is responsible for the uniformization of national jurisprudence, as well as ensuring the uniform application of federal legislation.

Caught in the Act Arrest (Flagrant): Arrest made by public agents when there is visual certainty of the infraction, or when the suspect has just practiced the alleged offense.

Appeal of Habeas Corpus: It is a judicial measure that can only be used by the citizen because of an unfavorable decision rendered in the judgment of a writ of habeas corpus decided by the state courts or by the federal courts.

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