LIMITATIONS OF THE FUNDAMENTAL RIGHT TO DATA PROTECTION IN LIGHT OF THE PROBATORY INSTRUCTIONS IN CRIMINAL PROCEEDINGS

Abstract

Contextualization: In the modern society we live, characterized by constant and accelerated technological development, understanding how the right to privacy, intimacy and individual data can be adequately protected is a fundamental issue, particularly when numerous public policies, in the name of social security, have emerged putting those rights at risk.

Objective: To evaluate how the doctrinal and casuistic debate on the tense equations between the fundamental right to personal data protection in the face of criminal prosecution, particularly in Brazil, has developed.

Methodology: It was used, in this research, the deductive method, testing the hypotheses with the general foundations to be outlined and analysis of some jurisprudential cases, as well as the research technique with indirect documentation, namely bibliography.

Results: As a result, it is proposed that the request for personal data stored by internet service providers can be given as long as the elements provided for in Law nº 12.965/2014, in articles 22 and 23, are indicated, namely: a) founded evidence of the occurrence of the offense; b) motivated justification of the usefulness of the request; and c) period to which the records refer, and that their execution also takes into account the dictates of adequacy, necessity and proportionality in a strict sense.