What does your cell phone say about you? Messages, contacts, images, web searches: what is possible to know about someone when we access their device? On this blog, we have already seen how smartphones are many times seen as “treasure chests” by investigation authorities. Our lives are more and more contained on these devices: the increase of the quantity and the detail of the stored information also makes it more likely to know a series of peculiarities and particularities about the phone’s owner.

In police approaches, this becomes evident: what has the potential to reveal more, searching a suspect’s phone or their pockets? The law authorizes the authority to search individuals if they have a “well-founded suspicion” that they are carrying guns or vestiges of a crime. In an occasion like this, can the policemen also access the smartphone of the approached person and search what is stored in it? As highlighted in InternetLab’s “Surveillance of Communications in Brazil 2017” report (in Portuguese), there are many controversies.

Earlier this year, the São Paulo Court of Justice (TJSP) had to deal precisely with this issue: can information obtained through the breach of secrecy on cell phones without a court order — that is, being “spied” without a specific and previous authorization by a judge — be used in criminal procedures? The case involved the searching of cell phones during a raid, followed by the arrest in flagrante delicto. The accused parties argued that the use of this evidence would be against their constitutional rights to the protection of intimacy and to the secrecy of their communications. The thesis is the same one which was used on April 2016 by the Superior Court of Justice: the search of data and conversations obtained by the police in a phone seized in flagrante delicto, without a court order, is illegal. The searching of cell phones would produce “invasive and highly technological evidence that allows the collection of information and results unattainable through senses and traditional techniques”.

However, Rapporteur Associate Judge Jaime Ferreira Menino was not convinced. Arguing that the circumstances of the case tried by the STF were different and that the decision of the superior court is nonbinding and is still pending on a final appeal to the Superior Federal Court (STF), the judge understood that the police authority could indeed have adopted the practice, basing his decision on the idea that the law would grant to the police attributions of repression and prevention of crimes that would encompass the possibility of searching the phone. These competencies would also preclude the enforcement of the Brazilian Internet Civil Rights Framework, in its item that guarantees the inviolability and the secrecy of stored private communications. In his decision, the judge explained that these protections only apply when “individuals are connected”, that is when they are using the Internet. If the device were connected, it would not be enough.

The judge also adopted and quoted an old interpretation of the Constitution, which until today is still used by the STF. According to this reasoning, data stored in devices are not protected by the right to the secrecy of communications: such protection would only apply to cases of interception of communications in real time.

Each of these arguments is debatable. As we have already emphasized, this line of interpretation of the Constitution is in disarray with modern technology, in which cell phones are practically the digital extension of our lives. It is necessary to rethink these levels of protection, since all that is saved in our phones (which can include years of emails, call log and routes, messages — even the most embarrassing ones from Tinder) can, today, say a lot more about us than the content of a call. Knowing this, the STJ, in its recent decision, was quite clear when declaring illegal the search of phones whenever there isn’t a court authorization.

The determination that the Brazilian Internet Civil Rights Framework should not be enforced due to the idea that a searched individual is “not connected” is also debatable. The frontier between being or not being connected increasingly tenuous, as our cell phones are persistently connected. With the phone in our pockets, are we no longer connected?

Why is it important to discuss these interpretations? Out of debt, out of danger?

Nowadays, carrying a cell phone is natural for most adult individuals and, by itself, it does not ring any alarms for the practice of a crime. In a Democratic State of Law, the precluding of privacy can only happen with a reason, and it is fundamental that there is a judicial sieve that assesses the pertinence of these phone searches. When guidelines for the acting of investigative entities are set, its legitimacy grows. Abuses should be restrained with rules and procedures that are sensitive to the circumstances of the concrete case and to the level of invasion that this or that practice entails.

In addition, the lack of a judicial sieve tends to worsen the condition of those who already are in a vulnerable position. Police raids do not happen in a uniform manner by neighborhoods, social class or race, which means that opening spaces for abuse can have potentializing effects on determined populations. Last week, the new commandant of ROTA — the São Paulo’s police elite force — affirmed that policemen who work on the Jardins region (a rich area of the city) should act differently than those who work in the outskirts: “[The policeman] uses the same technique, he will work under the same doctrine, but the manner of approaching and speaking with the person is different“. By giving a green light for the police to search cell phones in their raids, interpretations like the one by the TJSP may have as a consequence a greater exposure of the private lives of those who fit determined profiles. This already seems to be a reality: a recent article by Vaidapé magazine interviewed young residents of the outskirts and signed that the searching of cell phones may have become a common practice during police approaches on these neighborhoods.

However, this is not a measure that should be “neutralized”. Our constitutional protections should follow the technological developments. As devices began to hold a great part of our lives, thinking about the adequate rules to access them becomes a task of first necessity.

Access the TJSP decision here [in Portuguese].

Acess the STJ decision here [in Portuguese].

By Francisco Brito Cruz and Jacqueline Abreu

Translation: Ana Luiza Araujo