SO THIS SHOULD PUT THE TELEPHONE RECORDS DEBATE TO BED
I SUGGEST EVERYONE READS IT FULLY IF NOT ONCE THEN TWICE AND DECIDE WHAT IT REALLY SAYS.
Judge: Ribeiro Cardoso
1. In the case files pending in the Public Prosecution Services in which they are investigating the disappearance of M.M. and the eventual carrying out of the crimes of abduction, homicide, exposure or abandonment of a child and concealment of a corpse, the prosecutor in charge of the case under investigation
The Penal Procedural Code, promoted, amongst other operations, a request of the 3 national mobile telephone operators (TMN, Vodafone and Optimus) for digital support (CD or DVD) of the complete listings of telephone traffic to calls received and made in the period of time between April 28 2007 until September 9 2007, including cellular location and trace-back, as well as all calls on roaming and SMS and MMS messages and their respective content, for the following telephone numbers: (Ten telephone numbers follow)
- Telephone number as yet unidentified which during May 2 2007 sent 14 written SMS messages to G.M. and another 4 on the day following M.M.’s disappearance.
- The request from mobile telephone operator TMN, the dispatch on digital support (CD or DVD), the complete listing of telephone traffic referring to the calls received and carried out in the period of time between 20H00M of May 3 2007 and 12H00M of May 4 2007, including cellular location and trace-back, as also all calls on roaming and SMS and MMS messages and their respective content, of the following mobile numbers:
2. However, the Instructional Judge, by ruling of 24.09.2007, did not authorise the dispatch on digital support (CD or DVD) of the content of any message sent or received by SMS or MMS pertinent to all the above referred telephone numbers, as he concluded, such would mean attaining knowledge of the content of telephone conversation or communication already carried out, without the previous judicial authorization ruling, and because there is no legal support for such a request.
3. Refusing to accept this ruling, the prosecutor interposed the present appeal:
“i) – We present our dissent to Criminal Instructional Judge’s ruling - namely the part in which he did not authorise “the dispatch on digital support (CD or DVD) of the content of any message sent or received by SMS or MMS.
ii) – There is no reason to distinguish, as the judge did, between the two types of communication – content of SMS and MMS messages and listings of telephone traffic pertinent to the calls received and carried out. Where the law does not distinguish, nobody else may.
iii) – The right to protection against the invasion of privacy or intimacy runs no bigger risk or being violated by the access to the content of SMS and MMS messages than the knowledge of the precise circumstances of time, place, method and frequency of the calls received and made.
iv) – If the procedural law makes reference to the use of communications already carried out, it is to expressly authorize those, as defined linear and unequivocally in number 1 of article 189th of the Penal Procedural Code.
v) - In order to preserve the right to protection against the invasion of the privacy or intimacy of the communicants of the SMS or MMS messages in the case under appraisal, protecting, via judicial surveillance, any abusive invasion to that intimacy
vi) – In not authorizing the access to the content of the SMS and MMS messages, the ruling violated the dispositions of articles 179th, 187th and 189th of the Penal Procedural Code.
In these terms, revoking the appealed ruling and ordering its substitution with another which requests of the three national mobile telephone operators the dispatch on digital support (cd or dvd) of the content of any message sent or received by SMS or MMS and their respective content of all telephone numbers.”
5. The judge maintained the ruling, stating, essentially, the following:
“To attain knowledge of the content of communications carried out by SMS or MMS, because they are communications carried out by telephone, one must necessarily obtain a previous judicial authorization and it must result from interception carried out and authorized by that ruling, pertinent to the ongoing communication.
In my point of view and with due respect one cannot compare detail of traffic (those pertinent to listings of numbers dialed and received) with detail of content (pertinent to the content of the communication made – the words exchanged) with intent to treat them in the same way, due to their nature. It is not the same to know that on day X, at a certain hour, a communication was established between numbers Z and K, in a specific locale (traffic detail) and knowing what was said, arranged or discussed.
As there is no mobile phone legally apprehended, I also think it is not legal to use the rules pertinent to the apprehension of correspondence, running the risk of, in such a way, relegating the demands placed upon the interception of undergoing correspondence, which is what would happen if one was to order the operator to dispatch the content of those communications carried out via telephone, even if technically possible.
Finally, the statement “recorded on digital support” refers to the communications carried out by a different technical means than that of the telephone, ie. E-mail, in real time, via information network, etc, therefore, with due respect, such has no application herein”
8. Matter to be examined
In view of the motivations presented by the appealer, the matter to be decided is simply establishing whether it is permissible or not to request of the three national mobile telephone operators to dispatch on digital support (cd or dvd) the content of any message sent or received by SMS or MMS and their respective content pertinent to all the telephone numbers with reference to the period of time therein indicated.
9. In view of that exposed, we rule the appeal interposed by the public prosecutor, unfounded, consequently maintaining the appealed ruling.
Fernando Ribeiro Cardoso
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