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Summary

In Brazil, a constitutional principle provides for the protection of communications. A federal law regulates the breach of such protection by a court order, while a federal agency determines whether the providers of telecommunications and multimedia services must make available to the authorities the technological resources necessary to suspend telecommunications confidentiality in accordance with the law.

The Code of Civil Procedure does not provide any exemption from the duty to cooperate with the Judiciary, the Penal Code imposes jail time on those who disobey a court order, and a federal law punishes with imprisonment anyone who obstructs the investigation of a criminal offense involving a criminal organization.

I. Access to Communications

This report discusses the Brazilian legal framework for privacy of communications. This framework includes the constitutional principle that protects the secrecy of communications in the country and the law that regulates this principle and grants access to an individual’s communications, provided that such access has been authorized by a court order. The report also discusses the federal agency that regulates telecommunications in the country and that agency’s regulations regarding the suspension of telecommunications confidentiality as a result of a court order.

Provisions of the Brazilian Code of Civil Procedure, the Penal Code, and a federal law that punish disobedience to court orders, is also addressed. The report also offers two examples of application of the abovementioned laws in connection with court orders directing two different companies to grant access to the accounts of individuals who were under criminal investigation.

A. Constitutional Principle

According to article 5, section XII, of the Brazilian Constitution, the secrecy of correspondence and of telegraphic, data, and telephonic communications is inviolable. The only exception is for legally defined, court-ordered interceptions of telephonic communications in criminal investigations and fact-finding phases of criminal prosecutions (instrução processual penal).[1]

B. Law No. 9,296 of July 24, 1996

On July 24, 1996, Law No. 9,296 was enacted to regulate the final part of section XII of article 5 of the Constitution regarding lawful interceptions of communications. The Law states that the interception of telephone communications of any kind, as proof in a criminal investigation or in the fact-finding phase of a criminal prosecution, requires a court order issued by the competent judge in the main legal action, under judicial secrecy. [2] It also says that this provision applies to the interception of the flow of communications on data systems (sistemas de informática e telemática).[3]

C. Law No. 9,472 of July 16, 1997

Law No. 9,472 of July 16, 1997, provides for the organization of telecommunications services in the country. The Law created the National Telecommunications Agency (Agência Nacional de Telecomunicações, ANATEL), a federal agency subordinate to the Ministry of Communications and charged with the duty of regulating telecommunications in the country.[4]

“Telecommunications” are defined by Law No. 9,472 as the “transmission, emission, or reception, by wire, radio, optical, or other electromagnetic process, of symbols, characters, signals, writing, images, sounds, or information of any kind.”[5]

Pursuant to article 3 of Law No. 9,472, the user of telecommunications services has the right to the inviolability and secrecy of his or her communications, except in the cases and conditions established in the Constitution and the law.[6]

1. Resolution ANATEL No. 73 of November 25, 1998

Fulfilling its duties as established under Law No. 9,472, on November 25, 1998, ANATEL issued Resolution No. 73, which approved the regulation of telecommunications services (Regulamento dos Serviços de Telecomunicações).[7] The Resolution defines “telecommunications services” as the set of activities that enables the “transmission, emission or reception, by wire, radio, optical or other electromagnetic process, of symbols, characters, signals, writing, images, sounds or information of any kind.” [8]

The provider of telecommunications services is obligated to safeguard the privacy inherent in telecommunications services and the confidentiality of data and information, using all necessary means and technology to ensure this right of users. The provider must make available the technological resources necessary to suspend telecommunications confidentiality when so ordered by a judicial authority and “maintain permanent control” of all cases, after the execution of such orders, ensuring that they are strictly fulfilled within the authorized limits.[9]

2. Resolution ANATEL No. 614 of May 28, 2013

To regulate multimedia communications services (Serviço de Comunicação Multimídia), on May 28, 2013, ANATEL issued Resolution No. 614. [10] The regulation defines “multimedia information” as “audio signals, video, data, voice and other sounds, images, texts and other information of any kind.”[11]

The provider of multimedia communications services must ensure the secrecy inherent in telecommunications services and the confidentiality of data, including connection records and subscriber information, using all means and technology available.[12] The provider must make available to the authorities authorized to request such information data relating to the suspension of telecommunications confidentiality.[13]

D. Code of Civil Procedure

The new Brazilian Code of Civil Procedure determines that no one is exempt from the duty to cooperate with the judiciary for the discovery of truth. [14]

E. Penal Code

The Penal Code provides that disobeying a legal order is punishable by imprisonment for fifteen days to six months and a fine. [15]

F. Law No. 12,850 of August 2, 2013

Law No. 12,850 of August 2, 2013, defines the term “criminal organization” and provides for criminal investigations, the means of obtaining evidence, criminal offenses related to criminal organizations, and criminal prosecution.[16] At any stage of a criminal prosecution, authorities are allowed to access telephone records and data links, records of public and private databases, and electoral or commercial information, as well as to intercept telephone and data communications, without prejudice to other means already provided by law, according to the specific legislation.[17]

A person who personally or through an intermediary promotes, creates, finances, or participates in a criminal organization is punishable by imprisonment for three to eight years and a fine, and is also subject to the corresponding penalties for other criminal offenses committed. [18] The same penalties apply to those who prevent or in any way obstruct the investigation of a criminal offense involving a criminal organization.[19]

G. Law No. 12,965 of April 23, 2014

In 2014, Brazil issued Law No. 12,965, which establishes principles, guarantees, rights, and duties for the use of the Internet in the country and guidelines for state action.[20]

Article 7 guarantees to Internet users in the country the inviolability and confidentiality of the flow of their Internet communications and their stored private communications, except as otherwise dictated by court order.[21]

Article 10 determines that the content of private communications can be made available only by court order, in the cases and manner provided by law, subject to the provisions of sections II and III of article 7 of Law No. 12,965.[22]

According to article 11, the right to privacy, the protection of personal data, and the confidentiality of private communications and records must be respected in any activity involving the collection, storage, custody, and treatment of records, personal data, and communications through Internet service providers and Internet applications when at least one of these acts occur in the national territory.[23] This provision applies to the data collected in the national territory and the contents of communications, provided that at least one of the terminals is located in Brazil.[24] The provision also applies even if the activities are carried out by a legal entity based abroad, provided that the services are offered to the Brazilian public, or at least one member of the same group is established in Brazil. [25]

The providers of Internet services and applications must provide, in accordance with the regulation, information allowing verification of compliance with Brazilian legislation on the collection, custody, storage, or processing of data, as well as information demonstrating the protection of privacy and confidentiality of communications.[26]

Pursuant to article 12, the following penalties are applied individually or cumulatively to violations of the rules established in articles 10 and 11 of Law No. 12,965, without prejudice to other civil, criminal, and administrative sanctions:

  • I – a warning, with time indication for corrective action;

  • II – a fine of up to 10% (ten percent) of the economic group revenue [faturamento] in Brazil in its previous financial year, excluding taxes, considering the economic condition of the offender and the principle of proportionality between the seriousness of the offense and the intensity of the sanction;

  • III – temporary suspension of activities involving the acts provided for in article 11; or

  • IV – a ban on activities involving the acts provided for in article 11.[27]

In the case of a foreign company, the branch, office, or establishment in the country is jointly liable for the payment of fines. [28]

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II. Recent Court Cases

Two court cases illustrate the practical application of the legal framework involving the secrecy of communications and its breach by court order. The first occurred in December 2015 and concerned the suspension for forty-eight hours of the WhatsApp application in the country for failure to obey a legal order as determined by article 12 of Law No. 12,965.[29]

The second case involved the use of Law No. 12,850 to arrest the Latin American vice-president of Facebook in Brazil for the apparent obstruction of a criminal investigation because the company refused to provide information requested by a judge related to a criminal investigation involving a criminal organization and drug trafficking.[30]

Both cases are under judicial secrecy (segredo de justiça). Therefore, it was not possible to access the cases to precisely determine the legal basis for the actions taken against the executives of the companies and the current status of access to the users’ communications.

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III. Conclusion

In Brazil, the secrecy of communications is a constitutional principle that can be violated only by a court order. A specific law enacted in this regard regulates the issue and further determines that the authorized interception of communications also encompasses data systems.

The law does not make direct reference to decryption of communications after a warrant has been issued. However, the federal agency in charge of regulating telecommunications, in its regulations defining telecommunications and multimedia services, has specifically determined that the provider of such services must make available to the authorities authorized to request such information the technological resources necessary to suspend telecommunications confidentiality and the data relating to the suspension of telecommunications confidentiality.

In addition to these regulations, the Code of Civil Procedure states that no one is exempt from the duty to cooperate with the judiciary for the discovery of truth, and the Penal Code provides that disobeying a legal order is punishable by fifteen days to six months in jail and a fine.

Furthermore, whoever prevents or in any way obstructs the investigation of a criminal offense involving a criminal organization is punishable by imprisonment for three to eight years and a fine.

Apparently, the burden imposed on companies to make available the technological resources necessary to suspend telecommunications confidentiality includes the obligation to decrypt the communication. Otherwise, a court order granting access to an individual’s communications would be easily avoided. In this sense, it seems that this is what occurred in the two cases mentioned above. As a result, in one instance the service was suspended, and in the other the executive was arrested as a means to compel the companies to grant access to the communications, whether encrypted or not.

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Prepared by Eduardo Soares
Senior Foreign Law Specialist
May 2016


[2] Lei No. 9.296, de 24 de Julho de 1996, art. 1,http://www.planalto.gov.br/ccivil_03/leis/L9296.htm, archived at https://perma.cc/RB7M-WLTA.

[3] Id. art. 1(sole para.).

[4] Lei No. 9.472, de 16 de Julho de 1997, art. 8,http://www.planalto.gov.br/ccivil_03/leis/L9472.htm, archived at https://perma.cc/C5QX-AJBP.

[5] Id. art. 60(§1).

[6] Id. art. 3(V).

[7] Resolução ANATEL No. 73, de 25 de Novembro de 1998, art. 1, http://www.anatel.gov.br/legislacao/resolucoes/ 13-1998/34-resolucao-73 , archived at https://perma.cc/B8B6-FZN9.

[8] Resolução ANATEL No. 73, anexo, art. 2.

[9] Id. art. 26.

[10] Resolução ANATEL No. 614, de 28 de Maio de 2013, art. 1, http://www.anatel.gov.br/legislacao/resolucoes/ 2013/465-resolucao-614#art3res , archived at https://perma.cc/2HBD-C526.

[11] Resolução ANATEL No. 614, anexo, art. 4(VII).

[12] Id. art. 52.

[13] Id. art. 52(sole para.).

[14] Código de Processo Civil, Lei No. 13.105, de 16 de Março de 2015, art. 378, http://www.planalto.gov.br/ ccivil_03/_Ato2015-2018/2015/Lei/L13105.htm#art378 , archived at https://perma.cc/WB5A-79XA.

[15] Código Penal, Decreto-Lei No. 2.848, de 7 de Dezembro de 1940, art. 330, http://www.planalto.gov.br/ccivil_ 03/decreto-lei/Del2848compilado.htm , archived at https://perma.cc/QL9V-UZND.

[17] Id. art. 3(IV)–(V).

[18] Id. art. 2.

[19] Id. art. 2(§1).

[21] Id. art. 7(II)–(III).

[22] Id. art. 10(§2).

[23] Id. art. 11.

[24] Id. art. 11(§1).

[25] Id. art. 11(§2).

[26] Id. art. 11(§3).

[27] Id. art. 12.

[28] Id. art. 12 (sole para.).

[29] Marcelo Crespo, Investigação Criminal, Obstrução da Justiça e Bloqueio do WhatsApp, Canal Ciências Criminais (Dec. 17, 2015), http://canalcienciascriminais.com.br/artigo/investigacao-criminal-obstrucao-da-justica-e-bloqueio-do-whatsapp , archived at https://perma.cc/55UD-5JJB.

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Last Updated: 10/01/2016