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See analysis of the US agreement on data control deferring the request

See analysis of the US agreement on data control deferring the request

Minister this Wednesday 5th Alexandre de Moraes The application of the agreement signed between Brazil and the United States requested the opinion of a case analyzing whether providers abroad need judicial access to Internet user data. The device handles receiving private communications content under the control of Internet service providers outside the country.


In the previous session, the rapporteur of the measure, Minister Gilmar Mendes, voted for the possibility of national authorities requesting data directly from internet providers abroad. In a partial dissent, Minister Andre Mendonza voted for the active illegality of the plaintiff and, on the merits, followed the understanding provided by the rapporteur.

This afternoon, Minister Nunes voted for Marques n.It is understood that the compatibility of the agreement can only be discussed through the ADPF with knowledge of the action. FC/88. On merits, went with the reporter.

Moraes asks for a view and interrupts ruling on data access by an overseas network provider.(Photo: Nelson Jr./SCO/STF)


In the action, Asespro Nacional – Federation of Associations of Information Technology Companies seeks to validate the provisions of the Agreement on Legal Assistance in Criminal Matters between the Brazilian and North American governments. Enacted by federal decree 3,810/01The agreement deals with receiving personal communications content under the control of internet service providers outside the country.

According to the case file, some appellate courts understand that data can only be obtained through a letter rogatory or cooperation agreement. By appeasing the issue, the STJ understood that access to this data could be channeled through a court order to the company’s branch in the country’s headquarters or branch. In 2020, a public hearing convened by the rapporteur was held to discuss the topic.

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When voting, Minister Nunes Marques recalled that there was no objection to the device implemented in previous rulings. According to your Honour, the courts have only considered that a direct order to the company holding the data is expeditious and consistent with the text of the interrogated communication.

Also, the minister pointed out this “It is not a case to adjudicate the merits of the ADC as its purpose is to reaffirm the constitutionality of regulations which no court has held to be unconstitutional.”. In this sense, he voted without knowing the measure, as he understood that the compatibility of the agreement with CF/88 could only be discussed through the ADPF.

On merits, he went with the reporter to declare the constitutional provisions. Following the understanding, the minister emphasized “With ubiquitous computing and the Internet, we face not only unprecedented innovation, but also new living environments”.

Next, Minister Alexandre de Moraes asked to see the records.