The Federal Supreme Court (STF) is expected to resume on the 9th the trial that will decide whether Google should break the confidentiality of users who searched for Rio councilor Marielle Franco in the week before her murder and her driver Anderson Gomes, in 2018.
The topic has general repercussions, so the STF’s understanding will be applied in all Brazilian courts in similar cases.
The res judicata is an appeal filed by Google. The company is challenging a court order that forced it to provide records of IPs and device identifiers of users who searched for terms linked to Marielle Franco on its search platform. The request was from the Public Ministry of Rio de Janeiro.
The determination by the 4th Criminal Court of Rio de Janeiro targeted users who searched for combinations of words related to the councilor throughout the week leading up to her murder.
According to Google, this reverse search violates privacy, data protection and communication freedoms provided for in the Constitution, in addition to targeting innocent people. Google appealed to the Superior Court of Justice (STJ), which upheld the order, and now appeals to the STF.
Google argues that breaking the confidentiality of all searches for terms involving Marielle Franco would be an abuse of power.
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“The fundamental rights system was designed precisely to limit the power of the State, but here it is being relativized with purely pragmatic arguments”, stated the company in the appeal. Google described the request as inappropriate, unnecessary and disproportionate. Big tech argued that it cannot cooperate with the courts unless “there is a minimum level of individualization of targets”.
When denying Google’s appeal, the STJ said that the right to confidentiality does not have an absolute dimension and that it can be broken to cooperate with investigations. “Breaking the confidentiality of stored data does not oblige the judicial authority to previously indicate the people being investigated,” according to the decision.
The trial of the appeal at the STF began in 2023 virtually. Retired minister Rosa Weber, rapporteur of the case, voted against the Public Ministry’s access to internet research on Marielle. The judge also suggested the creation of a thesis to limit what data is shared in criminal investigations. She was accompanied by minister André Mendonça. Despite being retired, her vote remains valid.
Minister Alexandre de Moraes disagreed with the rapporteur, arguing that a breach of confidentiality can occur, as long as well-founded criteria for the investigation are respected. The divergence was accompanied by ministers Cristiano Zanin, Nunes Marques, Gilmar Mendes and Edson Fachin.
The trial was interrupted after a request for a review (more time for analysis) from Minister Dias Toffoli. In February of this year, the judge returned the case for further analysis, leaving the case now ready to be resumed in plenary. In addition to Dias Toffoli, minister Cármen Lúcia and minister Luiz Fux remain to vote.
