Public statement from the Institute of Research on Internet and Society – IRIS about ADC 51/2017

An Action in the Supreme Federal Court discusses international cooperation in cases involving the Internet and the obtation of communications content from users abroad

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On November 28, 2017, the Brazilian Supreme Federal Court (STF) received the Declaratory Action of Constitutionality No. 51. In this action, the Federation of Associations of Brazilian Information Technology Companies, Assespro, aims, among other requests, the declaration of the constitutionality of norms related to international legal cooperation, especially those referring to letters rogatory and Decree 3.810 / 2001, which incorporated the Agreement on Legal Assistance in Criminal Matters between Brazil and the United States into the Brazilian legal system. In ADC 51/2017, the Association also requests, in the alternative, the declaration of non-compliance with a fundamental precept based on commitments signed by Brazil internationally, as well as due to the refusal of Brazilian administrative and judicial authorities to apply them. At the heart of the debate is also the obtation of private communication content through online products or services offered or provided by internet companies operating on a transnational scale.

The breakdown of telematics secrecy in Internet applications has raised debates due to the refusal of foreign companies to deliver informational content of their users. On the one hand, they require compliance with bilateral treaties on legal cooperation between Brazil and the countries where its headquarters are located, notably the United States, and / or those in which the data are stored. On the other hand, Brazilian authorities question the effectiveness of these rules and their applicability in the multi-territorial and cross-border Internet environment. The unilateral conduct, in turn, has promoted a scenario of blockades of applications in Brazil, arbitration of high fines and even the arrest of representatives of multinationals in the country.

In this context, the Brazilian Supreme Federal Court was prompted to define how the Brazilian authority seeking to request data on private communications should require compliance from companies based abroad. It is important to note that ADC 51/2017 does not discuss the collection of public data; cadastral data and access records, whether from connection, whether application providers established outside Brazil, upon judicial request. The basis for these measures today is very well articulated, according to the rules of the Civil Internet Framework. The object of the controversy in the constitutional litigation before the Court, in turn, is extremely sensitive to questions of interpretation and application of international and domestic rules relating to jurisdiction, international legal cooperation, and recognition and enforcement of foreign judgments by States, among which are Brazil.

This seems to be an excellent opportunity for the Brazilian Judiciary to treat and reflect, with national and international repercussions, one of the most expensive topics to Internet governance in contemporary times: the exercise of jurisdiction. It will also have to face matters of private international law, particularly those related to compliance with foreign judgments, international legal cooperation, rules of connection determining the law applicable to the legal regime of existing legal entities and headquartered in other States, and in different regions of the globe. The action highlights the relevance of the need to deepen the debate in Brazil on the international and extraterritorial interfaces between the law and new technologies.

Considering the relevance of the interpretations to be adopted by the Federal Superior Court in the case, IRIS makes public its intention to present amicus curiae to the Court, in order to contribute by means of technical and legal subsidies for the future decision in ADC 51/2017, whose public and multisectoral repercussions are undeniable. Thus, in accordance with the Institute’s intention to work on issues related to Internet governance in Brazil, we seek to collaborate so that public hearings, legal opinions and memorials in this case are in compliance with both international law and the obligations of the Brazilian State in legal cooperation with other countries, as well as the respect for national sovereignty and human rights. In its institutional mission, which is important to highlight here, the Institute is concerned with the effects of the STF decision on individual and collective guarantees of citizens-users in the national territory and on the health of environments that stimulate innovation and national economic development in the segment of Internet and new technologies.