Brazilian society was appalled by the anti-democratic acts that took place on January 8, 2023, in the Praça dos Três Poderes, in Brasília (DF).
The right to freedom of expression and thought, guaranteed in Article 5 of the Federal Constitution, which protects fundamental rights and guarantees, should not protect those who attack the democratic rule of law.
The limits to the application of the guarantee of fundamental rights are defended by contemporary constitutionalists, given the fact that there is no fundamental right enshrined in the Constitutions that can be considered absolute.
Let’s see what jurist André Tavares teaches us,
(…) fundamental rights are not absolute (…).
Thus, it must be considered that the human rights enshrined and guaranteed: 1) cannot serve as a protective shield for the practice of illicit activities; 2) do not serve to support civil irresponsibility; 3) cannot annul the other rights also enshrined in the Constitution; 4) cannot annul the equal rights of other people, and must be applied harmoniously in the material sphere (…)[1].
According to Castells, the internet has reinstated the concept of large-scale communication production, opening up the possibility of individuals acting not only as message receivers, but also with the possibility of producing the communication content – thus acting as both receiver and sender.
The interactive communication system2 then emerged, with the possibility of technologies and social networks threatening the democratic system through fake news and undemocratic discourse.
Brazilian society, and its relatively young democracy, does not agree with anti-democratic acts.
On the contrary, alternation and ideological differences must be respected, especially since the 1988 Federal Constitution itself expressly states, in art. 5, VIII, that no one shall be deprived of their rights for reasons of religious belief or philosophical or political conviction.
The fact is that both technology and Digital Forensics and Computer Forensics techniques can make a substantial contribution to identifying the individuals who carried out the barbarism of January 8, 2023. [ 1] TAVARES, André Ramos. Course in constitutional law. 5th edition.
Ed.
Saraiva.
2007.
p. 460. 
On the characteristics of digital evidence Due to the volatile nature of digital evidence, formed by binary computer combinations, digital evidence is more susceptible to tampering than conventional evidence (committed in crimes in the “physical” world).
The characteristics of immateriality, volatility, fragility, high capacity for dispersion and loss, make it imperative to carry out Digital Forensics and Computer Forensics, following scientific methodologies that maintain the original conditions and validity of the evidence found, rigor necessary for the chain of custody of digital evidence.
In the absence of specific legislation on the chain of custody of digital evidence, Federal Law No. 12.965/2014 (Marco Civil da Internet) is the legislation that determines the means of obtaining digital evidence on the internet in the country’s legal system.
This specific law defines a connection record[1] as the set of information relating to the date and time of the start and end of an internet connection, its duration and the IP address[2] used by the terminal to send and receive data packets.
Internet application access logs[3] are defined as the set of information relating to the date and time of use of a given Internet application from a given IP address.
In a broad sense, connection logs are evidence of electronic or telematic communications, which require network connection elements to enable the traffic of content that is transmitted on social networks, messaging applications, websites, streaming services and other applications that the use of the internet offers us.
However, both connection and application records leave electronic or virtual “traces”.
Storage time for connection and content logs
According to art. 13, caput, of the Marco Civil da Internet (“MCI”), connection providers (telecommunications operators) are responsible for keeping connection records for a period of one (1) year.
In the case of a criminal prosecution, for example, given the possibility of the process taking longer than the above time limit, there is the possibility of the police, administrative or public prosecutor’s office requesting, as a precautionary measure, that the connection logs be kept for longer than the time limit laid down in art. 13, caput, of the MCI.
However, this authority must apply for a court order within 60 days of the precautionary request to access these records.
As for content application providers (such as social networks and search engines), the time limit for keeping records of access to internet applications is only 6 (six) months – and administrative and police authorities and the Public Prosecutor’s Office can also request that this time limit be extended.
All under the terms of art. 15, caput, §2, of the MCI.
However, according to art. 22 of the Marco Civil da Internet, in order to form a body of evidence in civil or criminal legal proceedings, the interested party may ask the judge to order the content or connection providers to supply the records (of content or connection).
The request must contain well-founded evidence of the occurrence of the illegal act; a reasoned justification for the usefulness of the records requested for the purposes of investigation or evidentiary instruction, and the period to which the records refer, under the terms of art. 22, I, II and III, of the Marco Civil da Internet.
However, it is possible for police, administrative authorities and members of the Public Prosecutor’s Office to request access to users’ registration data without the need for a court order, under the terms of art. 11, caput, §2, of Decree 8.771/2016, which regulates the Marco Civil da Internet.
The registration data are: I – the affiliation; II – the address; and III – the personal qualification, understood as the user’s name, first name, marital status and profession.
Therefore, in a case of criminal investigation, such as the anti-democratic acts that took place on January 8, 2023, as many of the individuals who took part in such acts, including some who attacked public property (among other conducts that could be criminalized), published videos or photos on their social networks proving their participation in such actions, it is enough for the police authorities, or members of the Public Prosecutor’s Office, to submit a request to obtain the participants’ registration data – without the need to obtain a court order, as explained earlier in this article.
Even people who have not posted on their social networks, but have kept their cell phones active, can be identified.
Marielle case
The investigation into the murder of Rio de Janeiro councilwoman Marielle Franco shone a spotlight on the use of the geo-fencing technique [4], which, in a nutshell, makes it possible to obtain information about which individuals were in a given place, day and time, based on the data from the cell phones of the people who were in the given location.
In this case, Google pointed out to the Superior Court of Justice (“STJ”) that, because this measure reaches an indeterminate and significant number of people, since it covers places with wide public access (such as the Centro, Barra da Tijuca and Itanhangá neighborhoods in the city of Rio de Janeiro), the result, in addition to being unreliable, could indicate users who were not there or exclude people who passed by.
And it denounced the occurrence of a fishing expedition.
The 6th Panel dismissed the appeal.
The case is before the Federal Supreme Court, with the existence of a General Repercussion under Theme No. 1.148, to judge the controversy concerning the limits and scope of judicial decisions to break the secrecy of personal data, in which the provision of internet access records and IPs(internet protocol addresses) is determined, limited to a demarcated period of time, without, however, the indication of any concrete element capable of identifying users.
However, in anti-democratic acts, the situation is completely different.
The geographical location, restricted to the Praça dos Três Poderes, and the date restricted to the afternoon of January 8, 2023, can locate and identify, through the fishing expedition technique , the individuals who took part in such actions – even without publishing photos and videos on their social networks.
In addition, the “ERB Triangulation[5]” technique, as used in the “Marielle Case”[6], could be applied in the case of anti-democratic acts, to help delimit the radius of cell phones that were connected on the afternoon of January 8, 2023, in Praça dos Três Poderes, helping to ensure that technology is used for the continuity and maintenance of democratic institutions.
Marcos De Lucca Fonseca, Digital Expert, Postgraduate in Digital Law from the State University of Rio de Janeiro (UERJ) – ITS; Copyright Specialist from Harvard Law School in partnership with UERJ – ITS; Bachelor in International Relations from Paulista State University (UNESP).[1] Article 5, VI, of Federal Law 12.965/2014.
[2] IP address is a unique address that identifies a device on the Internet or on a local network.
IP comes from the English “Internet Protocol” (network protocol) which consists of a set of rules governing the format of data sent over the Internet or a local network.
Source:
[3] Article 5, VIII, of Federal Law No. 12,965/2014. [ 4] Data from the Conjur website shows the existence of other cases in which this technique has been used, such as to investigate a circumstantial robbery and rape of a victim (RMS 66.668), the theft of jewelry and goods valued at R$1 million from a jewelry store (RMS 66.563) and 84 thefts of “airbags” committed since 2018, especially from Honda/Civic vehicles (RMS 65.064).
Source: https://www.conjur.com.br/2021-ago-05/marielle-faz-justica-ampliar-uso-geo-fencing-investigacoes[5] Radio Base Stations, popularly known as “cell phone antennas” [6] Source: https://g1.globo.com/economia/tecnologia/noticia/2019/03/12/investigacao-hi-tech-como-a-policia-fucou-buscas-e-localizacao-de-celular-para-chegar-aos-suspeitos-de-matar-marielle.ghtml
