A (in)constitucionalidade da prova penal obtida com violação da privacidade nos meios digitais : uma análise sobre os dados de comunicação em aplicativos de mensagens instantâneas

Abstract

Globalization and the development of a connected society, the network society, generated the need to update the mechanisms of criminal prosecution, especially in the use of hidden means of investigation. With the shift from telephone communications to virtual communications carried out over the internet, there was a need to equip criminal prosecution agents with modern forms of investigation, such as breaking the confidentiality of virtual communication data and intercepting these communications. However, the provisions of art. 5, XII of the Federal Constitution protects the confidentiality of data from State interference, relegating to the infra-constitutional law the hypotheses and ways in which this confidentiality can be relativized. With the enactment of Law Nº. 9,296/1996, the final part of the device was regulated, providing for the possibility of telephone and communications interceptions using computer and telematics systems. Thus, it is considered fully possible and acceptable in our legal system to use the interception of virtual communication signals, notably those occurring by instant messaging applications. However, virtual communication data stored in electronic devices do not have an express provision for breach of confidentiality, and its use in criminal proceedings, despite being accepted by our Courts, is unconstitutional, until a law regulating this practice comes into being. The aforementioned law must take into account the need for consideration between the protected legal assets, avoiding the total sacrifice of protection to the confidentiality of communications, providing for material, subjective and temporal limits for the use of the breach of confidentiality of virtual communication data stored in electronic devices, in criminal prosecution.