The information/digital society is characterized by the consolidation of one-sided associations. Dogmatic language relating to the protection of personal data and/or Confidentiality there is still a long way to go to achieve optimal regulatory parameters for guaranteeing, protecting and promoting the basic human right to the protection of personal data, as well as other rights that are related and complementary. .
As Professor Jorge Pereira da Silva of the Catholic University of Lisbon well recalled in a lecture held on August 23, 2022 at the Pontifical Catholic University of Rio Grande do Sul, the fundamental right to the protection of personal data is not structured. to protect personal data, but the people, their holders.
In the pre-election period, it is necessary to reflect on the normative contours of this right in its subjective and objective dimensions, especially those related to political personal data associated with “political opinion” and to “to belong to […] character organization […] political” (Article 5, II, Law 13.709/2018 — LGPD), which, by the way, are prefaced as sensitive, requiring a special level of protection.
Making a cut for this article, the question is: is it legal for a state to create a database [1], whether physical or digital, for the political classification of people? On the other hand, is it permissible for private enterprises, conglomerates with a dominant position in this sector, to carry out such processing of personal data?
In general, these small questions arise as the “private” practice of political profiling and classification of people seems to be naturalizing in Brazil in order to spread and improve political marketing in the digital realm (Internet advertising targeting), social media and similar circumstances.
Of course, the subject needs broad approaches, from different angles, epistemological, political, anthropological, philosophical, economic, historical, legal, etc., including clear formats between “state” and “private” traditions and activities, their possible “connections”.
From a constitutional and legal point of view, in Brazil, the Federal Supreme Court (STF) has already been able to prove itself in relation to the practice of political classification of people by the state, giving semantic indications on this issue. There is talk of an allegation of non-observance of the fundamental precept (ADPF) 722. [2]which, although not appreciated with the horizon of “data protection” [3] which, in this case, requires an imperative approach to the information separation of powers and a proper information process. [4]is obtained as a paradigmatic example of what, in short, exposes.
It will not go into the details specified in ADPF 722, which turned out to be related to the issue of intelligence (data) of the state, within its scope and purposes.
However, a decision is cited which, judging by the aforementioned ADPF, concluded:
“The Court, by a majority vote, granted the request for non-compliance with the main rule confirming the injunction granted, declare unconstitutional acts of the Ministry of Justice and Public Security production or exchange of information about the private life, personal and political choice, civil practice of citizensfederal, state and municipal employees recognized as participants in the anti-fascist political movement, university professors and any other persons acting within the framework of the law, exercise your rights to freely express themselves, meet and unite, according to the terms of the speaker’s vote, Minister Nunez Marquez won. Dr. Gabriel de Carvalho Sampaio spoke on behalf of the amicus curiae Associação Direitos Humanos em Rede. Minister André Mendonsa expressed suspicion. Plenary session, virtual session from 05/06/2022 to 05/13/2022.
In particular, concerns about the political classification of people, in this case carried out by the state, can be drawn from the court decision. There is a legal starting point that requires reflection.
Similarly, as stated above, private activities aimed at providing digital political marketing services sometimes use the processing of personal or non-personal data (that’s a different discussion) and their intersectionality characteristics to infer political “content” from “its users”, therefore classifying them like “x”, “a”, “b”, “c”, or “y”. Is this constitutional/legal practice? What are the risks of this? Are there any reports of impacts on this way of processing data? Do these reports meet the basic requirements? What are they? Can the requirements for Brazil, the US, Germany, China or France, for example, be treated with the same caution? Doctrine aside, associations, citizens, etc., should public authorities be concerned about this (and should they be?)? Is it possible to “avoid” the normativity of the LGPD and the Constitution (EC 115, Article 5, LXXIX) by “anonymizing” personal data? [5] In addition to other questions that may be raised, it is centralized: what are the necessary guarantees for the observance of the normative nature of the fundamental human right to the protection of personal data in this context?
The present, in its superficiality, may represent involuntary and willful exaggerations, but a topic that has already been approached by the best hands can no longer be ignored, because, as the decision of the Federal Constitutional Court of Germany from 1983, quoted in many possibilities, says, this does not mean that it cannot be forgotten — “no more “minor” data in the context of electronic data processing” [6]. If this text can be assigned a reminder function to this message, its assignment will be fulfilled.
