Inviolability of telephone communications
Privacy of communications
Right to private life
Telecommunications traffic data
RULING Nº 486/2009
28 of September of 2009
As a corollary to the protection that is afforded to the privacy of personal life, the right to the privacy of communications not only includes a prohibition on interfering with telephone calls in real time, but also precludes third parties from subsequently gaining access to elements that would disclose the factual conditions in which a communication took place. In our legal system, detailed invoicing came about as a mechanism that was designed to protect the users of essential public services – particularly the telephone service. This protection is given in the form of an obligation on the part of the service provider to identify each telephone call and how much it cost.
The introduction of detailed invoicing has improved subscribers’ ability to check whether the amounts charged by the service provider are correct. However, at the same time it also entails the possibility that the privacy of users of a telephone service may be endangered by the existence of information about the “factual conditions in which communications take place”. As defined by law, a detailed invoice must at least include information about all the calls that were made during a given period, the telephone numbers that were called, and the date of each call, the time at which it began and its duration.
Both the data contained in detailed invoices and, inasmuch as they are treated in order to make it possible to transmit communications, the cell location data that use those communications as the basis for providing the mobile equipment’s geographic position, constitute telecommunications traffic data. As such, they are covered by the protection which the Constitution affords to the secrecy of telecommunications.
The permission to intercept and record telephone conversations and communications covers not only access to the content of those communications, but also access to all the data that is provided by the act of carrying out the intercepts.
The interpretation of a rule which, at the time of the present case, permitted the interception and recording of telephone conversations and communications, such that the permission also covered access to the applicable detailed invoicing and the cell location data that provide the geographic location of mobile equipment based on acts of communication, is not unconstitutional.
This appeal on the grounds of unconstitutionality addressed an interpretation of a Code of Criminal Procedure (CPP) rule that permitted the interception and recording of telephone conversations and communications, such that it was said to encompass the data concerning the detailed invoicing of those communications and the applicable cell location data.
The appellant argued that inasmuch as access to traffic data is a different – albeit no less substantial – form of invasion to that posed by the interception of telephone communications, the issue it raises is one of restrictions on fundamental rights which, under the terms of the Constitution, can only be permitted by a law that expressly states its intention to authorise them.
In particular, this is because such access makes it possible to produce and attach significance to evidence that results from intromissions into telecommunications for which criminal procedural law makes no provision.
In Portugal the law does not currently include a system of amparo remedies or other forms of appeal that directly seek to shelter behind the Constitution or complain that it has been breached. Instead there is a normative review system, under which the Constitutional Court is not allowed to look at the constitutional merit of the act in a specific case whereby a detailed set of concrete facts are subsumed in the abstract provisions of a given legal rule. However, the Portuguese constitutional review system does include the possibility of considering the validity of a format which is generally known as a “normative interpretation”. When we are faced with a typified reality with a high degree of abstraction – as is the case with “access to detailed invoicing” and “cell location” – the arguments that the Court ought not to address possible violations of the principle of legality lose their foundation. In these hypotheses the Constitutional Court does not serve as a court of review of a lower court’s decision, in the way in which the other courts interpret and apply infra constitutional law; indeed, it is forbidden to do so. Instead it restricts itself to verifying whether the normative criterion adopted by the court whose decision has been brought before it – that an abstract typified reality should be considered to be included in a given legal precept – breaches the principle that legal provisions which restrict fundamental rights can only be made in the form of a law.
The appeal that is considered in this Ruling touched on the subject of the prohibitions of certain forms of evidence in criminal cases. It did so against a backdrop of an alleged breach of the constitutional protection afforded to the privacy of personal life and, more specifically, to the secrecy of telecommunications.
Even in matters concerning criminal liability, the constitutional values of the search for the material truth and that justice must be done are subject to limits imposed by human dignity and people’s fundamental rights. In procedural terms these take the shape of prohibitions on certain forms of evidence – prohibitions which everyone, including persons who are suspected of committing any crime, are entitled to invoke.
Having said this, not all the prohibitions on obtaining evidence are absolute, and the prohibition on obtaining evidence by means of intromissions into private life, at a person’s home, in correspondence and in telecommunications can be waived, either by the agreement of the holder of the rights in question, or via the restrictions on the inviolability of those rights that are authorised by the Constitution.
The constitutional legislator made express provision for restrictions on the secrecy of telecommunications, and then only in the field of criminal procedural law. The rule in this field is that recordings which result from telephone taps may not be produced or given value in court; the exception is that the Constitution permits the existence of an ordinary criminal procedural law that authorises the production of such evidence and the consequent attachment of value to it.
As to the type of data involved in a telecommunications service, there continues to be a consensus among Portuguese legal authors and in our jurisprudence that data should be classified into three types: basic data, traffic data, and content data. Unlike the basic elements (elements needed to establish a basis for communication), both the so-called traffic elements (functional communication elements) and the so-called content elements are directly related to the communication itself, in that they concern the latter’s identifiability and the actual content of the message or communication.
The functional (traffic) elements or data needed for, or produced by, the establishment of the connection via which a concrete communication with a given content is operated or transmitted are the address, the destination and the route. The secrecy applicable to telecommunications encompasses not only the content of communications, but also the traffic as such.
Detailed invoicing includes the so-called traffic data related to the communications that take place.
Cell location does not require the mobile equipment to make telephone calls – it is enough for that equipment just to be switched on.
In conformity with a European Directive, Portuguese law considers that the location data which provide the geographic position of terminal equipment are only traffic data to the extent that mobile network processes them in order to make it possible to transmit communications.
These traffic data are always recorded and stored for a limited period of time. Telephone service users are aware of this, so it would be hard to say that access to such data as part of criminal proceedings can be classed as one of the so-called “hidden methods of criminal investigation”.
The constitutional requirement that the law must first make provision for such techniques before the public authorities can use them to intrude on telecommunications as part of a criminal-law procedure is designed to place the greatest possible limits on the existence of areas in which those authorities are able to exercise their discretion.
On a purely literal level the text of the criminal procedural law provision in question does not make any explicit reference to the possibility of gaining access to detailed invoicing and cell locations. At first sight, it appears to only talk about the possibility of access to content data – i.e. the so-called “telephone taps”.
However, it is only through interpretation that we can understand the source and the content of a legal rule, although when doing so we must take care to exercise the necessary caution required by both the respect due to the principle of legality in criminal proceedings, and, in this particular case, the risk of causing serious injury to fundamental rights.
The interception and recording of telephone conversations or communications necessarily includes a kind of “detailed invoicing” of those communications, which is undertaken by the criminal police body involved in the case, and which takes material form in the shape of the recording that has to be attached to the case file.
At the same time, interceptions of telephone communications are always technically and necessarily preceded by the cell location of the mobile equipment involved, without which it is not possible to establish and transmit communications.
It is thus possible to conclude that when it permits the interception and recording of telephone conversations or communications, the article of the Code of Criminal Procedure also permits access to all the traffic data inherent in the implementation of this particular technique for intruding into telecommunications.
And, inasmuch as these traffic data are only a part of the data that are made available by carrying out “telephone taps”, there is nothing to stand in the way of the requirement (and indeed, it becomes imperative) to ensure that the techniques for intruding into telephone conversations are restricted to the extent needed to achieve the intended criminal investigation objective. In fact, access to these traffic data may even suffice in its own right and dispense with the need to perform a “telephone tap” that is no longer indispensable to the purposes of the investigation.
The Constitutional Court concluded that, inasmuch as access to detailed invoicing and cell location are included in the content of the techniques for intruding into telecommunications for which the legislative authorities have made express provision, it was the Court’s view that the normative interpretation before it did not fail to respect the principle of legality.
The Ruling makes a number of references to European legislation and comparative law, as well as to jurisprudence from the same sources.