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Legal aspects of electronic criminal evidence in Brazil

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In 1996, the Brazilian Congress edited a Federal Statute, Law No 9.296 that regulates the constitutional provision that protects data and telecommunications privacy. Law No 9.296/96 allows the interception of telecommunications in some very specific situations. In addition, Law No 9.296/96 also criminalizes the interception of telecommunications without proper judicial authorization. The use of the Internet, in Brazil, has made some legal questions related to the possibility of the use of electronic evidence very important. Issues such as the scope of the constitutional protection of privacy and the legal authorization for interception are addressed by Brazilian commentators. Besides, decisions of the Brazilian Supreme Court have led to the possibility of the use of electronic evidence for criminal prosecution. In this article, I will analyze the procedural and the criminal provisions of Brazilian Federal Law No 9.296/96. Part I will describe the constitutional provision regarding right to privacy in Brazil. The discussion will include a brief description of the legal framework the Brazilian Supreme Court has adopted for the legality of criminal electronic evidence. Part II will address the procedural topics of Law 9.296/96, with the focus on its constitutionality. An analysis of the criminalization, by article 10 of Law No 9.296/96, of the interception of telecommunications follows in Part III. Part III will lead to the conclusion that, in Brazil, the interception of e-mails is a crime under article 10 of Law No 9.296/96. Finally, I propose that the access to an e-mail by a third party with the previous knowledge of the parties involved in the communication is not a crime because it does not jeopardize the secrecy of the telecommunication.

Document Type: Research Article


Publication date: March 1, 2006

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