Personal data processed for criminal investigation matters: the fundamental right of informational self-determination law as constitucional limit

Abstract

What are the legal limits for security agencies to process personal data in ongoing criminal investigations? This paper aims to understand whether Brazilian criminal justice law already imposes limits on personal data use in investigations, and If so, what those limits would be. This work adopts a hypothetical-deductive methodology starting with a general contextualization of the problem. Afterwards, it proposes a debate on the existence of a concept for "personal data" and its application in the Brazilian criminal justice system. A brief bibliographic review displays the risks associated with the massive data gathering by security agencies. In the judgment of the IBGE case (ADI 6387), this work argues that the Brazilian Supreme Court recognizes the fundamental right to informational self-determination, which is the limit that the public interest in a criminal prosecution must face. To define this fundamental right's meaning, this paper proposes applying the charter of principles present in the art. 6 of the Brazilian Data Protection Regulation (LGPD), understanding those principles as a part of informative self-determination.