Metadata: Constitutional Court rejects parliamentary decree for second time

Law approved “oversteps limits of proportionality” in terms of fundamental rights

Portugal’s Constitutional Court has today declared parliament’s decree regulating access to communications metadata for the purposes of criminal investigation unconstitutional for exceeding “the limits of proportionality in restricting fundamental rights”.

The announcement was made at the headquarters of the Constitutional Court (TC) in Lisbon by its president, José João Abrantes, who said that nine judges ruled that the decree’s intention, which provides for the retention of traffic and location data for up to six months, was unconstitutional.

For the judges (who voted in favour of the decision by nine to three), the rule in question exceeds “the limits of proportionality in restricting the fundamental rights to informational self-determination and the privacy of private life“.

The decree had been approved by the Assembly of the Republic in a final overall vote on October 13, with PS, PSD and Chega voting in favour and IL, PCP, BE and Livre voting against.

It was subsequently sent by the President of the Republic to the Constitutional Court for review of its compliance with fundamental law.

The law will now be sent back to parliament by the president, to be re-drafted by whichever party takes over following the elections in March.

For investigators like the PJ judicial police, this will be yet another a setback in efforts to make the most of telecommunications technology to solve, indeed even potentially prevent, all kinds of crimes.

Only three weeks ago, the PJ’s national director Luís Neves said metadata are an essential tool in the investigation of certain crimes. Not being able to access metadata “is an assassination of investigations”, he told a conference last month on “Freedom and Security in the Digital Age”.ND

Source material: LUSA/ CNN Portugal