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

Monday, 6th December, 2021 (13:00 UTC) - Monday, 6th December, 2021 (13:20 UTC)
Ballroom C

Data Privacy Brasil Research Association


Daniela Dora Eilberg

Online Moderator

Pedro Saliba


Gabriela Vergilli


Presentation of preliminary research results and talk about Brazilian police practices and data protection measures to guarantee human rights in the investigations.

Duration (minutes)



his lightning talk is the result of a research project of Data Privacy Brazil Research Association on public security, criminal investigation and data protection. As surveillance technologies are increasingly adopted in the public security area, issues as facial recognition, abusive use of data for investigations and data sharing are just a few topics to be discussed in the criminal field. Nations in the global south have experiences that expose social vulnerability when it comes to the transparency of procedures. The risks to individual and collective liberties require special attention to the role of new technologies in criminal prosecution. Brazil becomes a central player with its history of slavery, police violence, with a Code of Criminal Procedure that dates from 1941 (a time of dictatorship) and the recent appointment of military officers to the national data protection authority.

The speakers will present the research and findings in a brief video with 10 minutes length. By the end, a debate will be held with the participants, answering questions from the chat. We also want to use Twitter to engage potential audience members, from Brazil and above, specially civil society members. We will be using a custom hashtag to gather questions and create a live tweet thread with live comments.

Key Takeaways (* deadline 2 hours after session)

Brazil has a concerning lack of legal framework to regulate the use of personal data for public security and criminal investigation purposes. In addition to that, there are some draft bills being analysed by the Congress that can aggravate the scenery of misuse and illegal use of personal data. This accentuates the need for a Personal Data Protection Law on public security and criminal investigations.

The lack of regulation is already violating fundamental rights and constitutional principles such as presumption of innocence, liberty and privacy. The research presented focused on the use of mug-shot albuns and the problem of not having a defined data life cycle. The violation of fundamental rights calls for a rapid response, especially when looking at statistical data on that matter that shows that the most affected group is black people.

Call to Action (* deadline 2 hours after session)

Since there were just the presentation of results, we call all civil societies in Brazil that work regarding the matters: (i) personal data protection; and/or (i) public security and criminal investigation; and to representatives of the Brazilian Congress to add forces to put in voting the draft bill for the Personal Data Protection Law on public security and criminal investigations.

Session Report (* deadline 26 October) - click on the ? symbol for instructions


In Brazil, we are noticing a recurrent problem regarding photo lineup and the imprisonment of innocents. There is an established practice in the police of organizing the Mug-shot album, 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 there through oficial registers but also unconventional means, such as Whatsapp groups. According to a research conducted by the National Council of General Public Defenders (CONDEGE) alongside the Public Defender’s Office of the State of Rio de Janeiro, the errors in photo lineups affect mostly the black community, which also indicated a discrimination factor in the conducts.

To worsen the situation, there is not yet a regulation to the use of photo lineups. The legal parameter, the Code of Criminal Procedure, is from the 40’s, that 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 work group to diagnose Brazilian scenery and elaborate a draft bill on the matter. 

Simultaneously, in the House of Representatives, another work group is analysing the bill for the new Code of Criminal Procedure. This draft tries to update the procedures including digital evidence to the norm, but fails for not reinforcing constitutional garanties and due process. Among the changes there are provisions that authorize unproportional massive retention of data in investigations, government hacking, setbacks in terms of already set garanties for calls interception and other questionable measures.

Both regulations, the photo lineup bill and the new Code, lack another law to lean on. Last year, the 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 2016/680. We believe that this law is a necessary step in order to set a regulation of personal data processing in the public security and criminal investigation field.

This lack of regulations on data processing concerns civil society organizations especially now that there are so many public security laws being reviewed by the Congress. Aside from the two already mentioned, Brazil has signed the Budapest Convention on Cybercrimes. The debates on the accession 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 a slavery regime which led to a profund inequality in its population. Also, a lot of actions conducted by the public apparatus are not as transparent as they should be, therefore an obstacle for social control. That is to say, that the decision making resides in a few hands, putting at risk the individuals. In addition to the local scenery, vigilantism is growing around the globe. That accentuates the need for international cooperation and defines shared responsibilities between the public and private sector. 

In order to avoid further discrimination and to reduce/cease fundamental rights violations, we need to collect data, statistical data on how personal data is being processed for the purpose of public security or criminal investigations (since this is something that is not mapped or closely controlled). And then adapt and update our public security and criminal investigations law to reinforce fundamental rights and re estate the right to personal data protection.

To obtain this result the stakeholders must come into terms and find a way to regulate the use of personal data not to impossibilitate police and prosecutors activities while protecting the individual and their rights. That said, the public defenders, lawyers and activists, who occupy the poll that is more concerned with data protection need to pressure lawmakers and decision makers to regulate as soon as possible those practices, understanding the limitations that public security matters might impose. The same must happen to public prosecutors and law enforcement agents who must adapt themselves firstly to make possible a regulation on the matter, and secondly to learn who to deal with personal data and limit their own activity to avoid violation of fundamental rights.