Criptografia, direito fundamental à privacidade e deveres fundamentais dos provedores de mensageria privada na persecução penal

Abstract

In a scenario strongly influenced by the phenomenon of massification of encrypted digital communications, in which the significant transformations carried out in life in society challenge the functional capacity of institutions, this research asked: considering the essentiality of encryption for the realization of fundamental rights, especially privacy and protection of data, and also the fundamental duties of individuals towards public security and the administration of justice, which may be required of providers of encrypted private messaging applications in relation to compliance with court decisions that determine telematic interception or breach of data confidentiality? The general objective was to understand (i) the connections between messaging applications, encryption, and fundamental rights and duties in light of technical and legal issues surrounding the (non)compliance with judicial decisions on telematic interception and breach of confidentiality of static data by providers of these applications, as well as (ii) the consequences arising from this complex interaction for the State's persecutory activity. In terms of specific objectives, we sought to identify the evolution of the fundamental right to privacy, correlating it with the dissemination of encryption and its impacts on criminal prosecution in the context of the digital revolution and cryptographic wars. Furthermore, under the epistemological perspective of the legal paradigms typical of the theory of fundamental duties and based on the essentiality of cryptography for today's society, the constitutional expectations that fall on encrypted messaging application providers with regard to cooperation with public security were investigated and administration of justice by complying with court decisions on data delivery. Finally, the advantages and disadvantages of searching for and obtaining stored communications (backup) and metadata generated in the context of different cryptographic architectures in different existing applications are analyzed, and the legal assumptions of appropriateness and scope of the precautionary evidentiary measures mentioned above are defined. The initial hypothesis was that (i) in relation to telematic interceptions, respecting the architecture of each system, end-to-end encryption makes it impossible, as a rule, to intercept data in flow, consequently making it unnecessary to impose sanctions for possible non-compliance with court decisions; (ii) in relation to the breach of the confidentiality of static digital data, providers of encrypted messaging must provide prompt and adequate access to criminal prosecution authorities to the respective data, metadata or stored digital communications not affected by encryption at their disposal, always respecting the technical peculiarities of the architecture of each system; Unjustified recalcitrance in complying with a decision opens the way to sanctions, in accordance with the law. As a theoretical framework, works by José Casalta Nabais were used, with an emphasis on ―The fundamental duty of paying taxes‖, with a deductive approach, and a bibliographic review procedure.