IGF 2021 – Day 0 – Lightning Talk #75 Police, law enforcement and data protection: regulating investigations for procedural justice and as a fundamental human rights

The following are the outputs of the captioning taken during an IGF virtual intervention. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid, but should not be treated as an authoritative record.



>> PEDRO SALIBA: Hello. Good morning, everyone.

Good morning, good afternoon, or good night, depending on where you are.

My name is Pedro Saliba.

I'm a researcher from Data Privacy Brazil Research Association.

Data Privacy Brazil is a nonprofit entity headquartered in San Paolo.

The organization is dedicated to the interface between personal data protection, technology, and fundamental rights producing research and actions before the justice system, legislative agencies, and government. We're currently working on a research project regarding data protection in the public security field and these are some of the findings we want to share with you. In Brazil, we are noticing a recurrent problem regarding photo lineup and imprisonment of innocents.

There's an established practice in police in organizing the mugshot albums, as they are called, but the photographs placed in them go from real suspects and convicted individuals to innocent and/or acquitted people.

Those images get through through official registers, but also unconventional means such as WhatsApp groups created by police officers in the streets. According to research conducted by the National Council of General Public Defenders, alongside with the Public Defenders Office in the state of Rio de Janeiro, the photos lineup errors affect mostly the Black community which indicate a discrimination factor in the conduct.

To worsen the situation, there is not yet a regulation to the use of the photo lineups.

The legal parameter, the Code of Criminal Practice, is dated from the 1940s.

This is a very outdated law that brings many practical difficulties.

As a way to fix the legal gap, the National Council of Justice created a workgroup to diagnose resilience synergy and elaborate a direct view on the manner. Similarly, another workgroup is analyzing the view of the new Code of Criminal Procedure.

This draft attempts to update the procedures, including digital evidence to the norm, but fails for not reinforcing Constitutional guarantees and due process, especially regarding data practice issues. Among the changes, there are provisions that authorize unproportional massive retention of data in investigations, government hacking, setbacks in terms of already‑set guarantees for calls inter‑substation and other questionable measures. Both regulations, the photo lineup, and the new code lack another law to lean on.

Last year, the Data Privacy Research Association helped the Jurist Commission responsible for the development of a first draft of a Criminal Data Protection Law, which was inspired in the directive of European Union 2016/6080. We believe this law is a necessary step in order to set a regulation of personal data protection in the public security and criminal investigation field.

This lack of regulations on data processing concerns Civil Society Organizations. Especially now that we are ‑‑ now that there are so many public security laws being reviewed by the Congress.

Aside from two already mentioned, Brazil has signed onto the past conventions on cybercrimes.

The debates here in Brazil on the adoption have been rushed, not leaving much space to evaluate and criticize the text, and make an appropriate inclusion in the Brazilian legal framework.

Brazil is a country marked by a colonial history and enslavery regimen which led to profound inequality in its population.

Also, a lot of actions conducted by the public apparatus are not as transparent as they should be.

Therefore, a lot of actions conducted by the public ‑‑ therefore, sorry.

Therefore, an aspect for social control.

Let us just say that this decision‑making is putting at risk the individuals. In addition to the local scenery, vigilantes this is growing around the globe that accentuates the need for international cooperation and defined shared responsibilities between the public and private sector, not only in Brazil, but all countries that Brazil has relation with. We are now taking questions, if anyone has questions about the research or about data protection in security, public security field in Brazil.

Thank you very much. Since we have no questions, I'm going to use these minutes to share some of the findings especially on the mugshot albums and the imprison of innocents.

In Brazil, we have this issue that is very different from Global North, but very similar to other countries, especially in Latin America. Even though we have issues regarding things like facial recognition, this imprisoning of innocents in Brazil are especially made by administrative practices.

These mugshot albums, they are created by every police district in Brazil.

And they are a collection of photos that we don't know where they came from.

Some of them come from official datasets, official databases, and photos, informations like from identification institutes, official identification institutes.

But some of them come from very nontransparent means.

For example, WhatsApp groups, many police officers, when they are on the street, if they see someone they think is a suspect, if they see someone that they think is a person that may be committing some crimes, they can take a picture of them and share it in these groups.

So these groups, some of them, the picture gets printed in the district, and they are shown.

When you go to the police officer to register a crime or to request an investigation, to make a call, the inspectors may show you this album and say, "Is one of these persons?" Most of them are Black people.

And we are very concerned about data protection issues these mugshot albums.

Another thing that we are pursuing is to debate the perception of innocent in data protection in those albums, because they don't have a life cycle defined.

So when a photo goes to the album, this person can be investigated as many times as someone points out that, "Okay, this might be the person that robbed me," for example.

So a person that may have never committed a crime is always ‑‑ is never ‑‑ the perception of innocent is never fully there, because when the photo is in the album, anyone can point out and say, "Okay, this is the one." For example, in Rio de Janeiro a man, a Black man, was investigated about nine times, even though he never committed any crime. They don't know how the photo came there.

The public council of Rio de Janeiro is defending him and they don't fully know how the photo went to the mugshot album.

They suspect the photo went there because he went to the police officer, to the district, to go there for something, for example, to ask for information, and they took a photo of him.

Because of that, he's been investigated nine times along these years, even though he never committed any crime. Recently, the public defenders office, they asked, for the injustice, to remove his picture from these albums, especially that district, and they had a positive decision. So this is the first decision that confirmed the exclusion of the photo on these mugshot albums, but we have a very long and complicated walk through this issue in Brazil.

Data Privacy Brazil Research Association, we are working on this in many fields. We are doing empirical research and we are trying to understand how this pictures come in, what are the softwares that police uses, and how are they able to identify these people.

But we are also talking to the National Council of Justice because they are, since they are many innocent people on the media, especially, showing that these photos lineups are very biased, and they are not effective, the National Council of Justice have a group work to regulate these photo lineups.

And our preoccupation is especially with data protection means with these photos. So we are trying to correlate data protection and other fundamental rights, such as perception of innocence, the right to fully defend yourself because when you don't know where these pictures came from, and they are not transparent, there's no transparency in the police procedures and administrative practices, so these are our main concerns. Thank you very much for being here.

I'm going to leave ‑‑ oh, so we have five minutes left.


So if anyone has any questions?

Because I'm going to leave the Data Privacy Brazil website, the Research Association website. And I'm going to keep using this time to present other things.

Not only the mugshot albums.

We think the mugshot albums are a great opportunity to discuss data protection and in the public security field.

In Brazil, we have a draft bill of a data protection law for the security field that was inspired by the European Union Directive 2016/6080. This draft is very appreciated by specialists, but no ‑‑ it's not being analyzed by the Congress.

So it's only a draft bill.

It has no ability to present a law project.

So we are very concerned about this.

And we think that this ‑‑ this is a great opportunity for Brazil that already has data protection law that we think is very important. Not only because of tests, but the way it was constructed with materials with academia, Civil Society, and government, and the different companies, the Private Sector, had a very important consensus on how this law should be. So we think with this experience in Brazil in the internet governance field, we have a very big opportunity to take this and regulate the use of new investigation means.

So this is a very important step for Brazil in the data protection and public security field. I'm going to invite you all to take a look on our other research projects.

We have some fields about governments and regulations power and asymmetries and platforms and digital markets.

And they are all regarding data protection and fundamental rights.

And I'm going to ‑‑ I want to thank you, IGF, for the opportunity in this talk, and everyone here that was presented.

If you have any questions, also, I'm going to leave my email.

But also the website of the Data Privacy Brazil Research Association. Thank you very much. (End session at 7:24 a.m. CT.)