PROVISION OF REAL-TIME LAWFUL INTERCEPTION ASSISTANCE

THE CONSTITUTION OF THE PORTUGUESE REPUBLIC

There are two instances in which the Portuguese courts can authorise and demand the provision of real-time interception assistance:

  • As per article 34,4 of the Constitution of the Portuguese Republic, interception of telephone communications is only expressly allowed in the context of criminal investigations which are not under responsibility of the Government but of the Public Prosecutor jointly with a criminal judge; and
  • Articles 19, 134 and 138 of the Constitution for the Portuguese Republic, as well as law nr. 44/86, dated 30th of September (Legal Framework for the State of Siege and Emergency) permits the suspension of certain rights, liberties and guarantees by national bodies of sovereignty (including the government) in the event that a state of siege or state of emergency has been decreed by the President of the Republic and approved by the Portuguese Parliament . The state of siege or state of emergency decree shall expressly determine which rights, liberties and guarantees shall be suspended. In theory this legal framework could enable the government to demand that a communication service provider to assist in intercepting customer communications provided that has been foreseen in the state of siege or state of emergency decree that the fundamental rights of article 34 of Constitution of the Portuguese Republic are suspended. Nevertheless the government order should be communicate to a judge afterwards for validation.

Should interception of communications be carried out in any other context, this would be considered illegal, a breach of the Constitution of the Portuguese Republic and would be punishable as a crime.

PORTUGUESE CRIMINAL PROCEEDINGS CODE

For the interception of communications in the context of a criminal proceeding the rules established in articles 187–190 of the Portuguese Criminal Proceedings Code, interception may only be authorised in case of suspicion of crime and after criminal proceedings are opened. The interception may only be authorised by a Judge if the crime under investigation is for example one of the following:

  • crimes punished with imprisonment which maximum limit is not less than 3 years;
  • narcotraffic;
  • possession of prohibited weapons and weapon trafficking;
  • contraband;
  • crimes which consist of offending, threatening and disturbing privacy and carried out by telephone;
  • terrorism; or
  • organized crime

To perform communications interceptions an authorisation from a judge is always required. Only the Public Prosecutor (who is in charge of the investigation) may decide to request authorisation from the Judge for the interception.

Law nr. 9/2007, dated 19th February 2007, which sets out the legal framework for the Portuguese Information Security System (Sistema de Informações/”SIS”) and for the Portuguese Services for Strategic Defence (“SIED”) and the purposes and attributions of the bodies responsible for managing information, security and national strategic defence in Portugal, does not grant powers of interception, encryption/decryption, direct access to communications or the possibility of requesting such access being granted by electronic communications service providers. Such access is only possible under the terms of the Portuguese Criminal Proceedings Code, in the context of a judicial procedure, as set out above.

LAW NR. 53/2008

Law nr. 53/2008, dated 29th August 2008, establishes the legal provisions applicable to Homeland Security in Portugal. This Law outlines that access and control of communications may only be carried out following a judicial authorisation and solely performed by the police.

PORTUGUESE ELECTRONIC COMMUNICATIONS LAW

Under article 27/o’ of the Portuguese Electronic Communications Law (Law 5/2004, dated 10th February) and the operating licences granted to communication service providers, it is an obligation on the providers of electronic communications services and networks, to provide, at their own expense, systems for legal interception by competent national authorities, as well as supplying the means for decryption or decoding where these facilities are present.

DISCLOSURE OF COMMUNICATIONS DATA

Under Portuguese law, only ICP-ANACOM (National Regulatory Authority for the electronic communications sector or Comissão Nacional de Protecção de Dados (National Data Protection Authority) can access or order the disclosure of metadata, and only within the scope of their powers to supervise, monitor and investigate (notably in case of a customer complaint) compliance with the laws and regulations applicable to the electronic communications sector and in respect of compliance with data protection and privacy laws.

ICP-ANACOM’s legal powers are defined in law 5/2004, of 10 February (electronic communications law) and in Decree-Law no. 309/2001, of 7 December (ANACOM Statute). Comissão Nacional de Protecção de Dados legal powers are defined in Law nr. 67/98 of 26 October (Portuguese Data Protection Act) and Law nr. 43/2004 of 18 August (organic law for the National Data Protection Authority).

Apart from these authorities, no other government department or law enforcement agency can order the disclosure of metadata. Such information can only be obtained under the regime set out above for provision of real-time lawful interception assistance, namely in the context of a criminal proceeding, and provided that a judicial authorization has been sought and the rules established in articles 189–190 of the Portuguese Criminal Proceedings Code are followed. However, in case the state of siege or state of emergency has been decreed the exceptional regime set out above may also apply.

NATIONAL SECURITY AND EMERGENCY POWERS

The Portuguese National security agency is exclusively competent to gather intelligence to prevent threats to national security. Therefore, under the Law 30/84 of 5 of September, it is not allowed to pursue actions that may constitute an offence to the fundamental rights, liberties and guarantees as set out in the Portuguese Constitution and Law.

Additionally, this law also establishes that the agency does not have powers to pursue any type of acts that are in the scope of the courts and police authorities’ competence.

In the event of the suspicion that a crime is being committed against national security, the Portuguese National security agency must inform the Public Prosecutor so that a criminal proceeding can be opened and, in that case, if relevant to the investigation, the Public prosecutor may request to a Judge the gathering of evidence (e.g. through real-time interception or disclosure of metadata) according to the regime described above.

CONSTITUTION FOR THE PORTUGUESE REPUBLIC

Articles 19, 134 and 138 of the Constitution for the Portuguese Republic, as well as law nr. 44/86, dated 30th of September (Legal Framework for the State of Siege or state of Emergency) permits the suspension of certain rights, liberties and guarantees in the event that a state of siege or state of emergency has been decreed by the President of the Republic, after consulting the government, and approved by the Portuguese Parliament. The state of siege or state of emergency decree shall expressly determine which rights, liberties and guarantees shall be suspended.

The state of siege or emergency would only be effective upon specific enforcement by the President. These powers are absolutely exceptional and may only last for a maximum of 15 days (or if otherwise decided by law). These states of siege or emergency may only be determined if absolutely necessary, in the event of an effective or imminent aggression by foreign forces, grave threat or disturbance of the normal, democratic constitutional order, or public calamity. Any powers granted to the government in this respect will apply in very limited circumstances and only to the extent absolutely required and adequate for the purpose at hand.

OVERSIGHT OF THE USE OF THESE POWERS

The provision of oversight in respect of the powers of interception and disclosure of communications data are set out in the sections above.

CENSORSHIP RELATED POWERS

SHUT-DOWN OF NETWORK AND SERVICES

CONSTITUTION FOR THE PORTUGUESE REPUBLIC & LAW NO. 44/86, 30 SEPTEMBER

The Portuguese government may order the shut-down of providers’ networks and services (including Vodafone’s) should a ‘State of Emergency’ or ‘State of Siege’ be declared.

A ‘State of Siege’ or ‘State of Emergency’ is declared by the President of the Portuguese Republic and it depends on the hearing of the government and parliamentary approval. It is exceptional; only declared when absolutely necessary in the event of a serious threat or disturbance to Portugal’s normal, democratic constitutional order, such as a public calamity or imminent aggression by foreign forces. It may last up to a maximum of 15 days, subject to possible renewal for one or more similar terms, in case the situation that gave rise to the declaration of the “State of Siege” or “State of Emergency” persists.

Articles 19, 134 and 138 of the Constitution for the Portuguese Republic and Law No. 44/86 dated 30th of September (Legal Framework for the State of Siege and Emergency) allow the suspension of rights, liberties and guarantees by sovereign national bodies (including the Portuguese government) in the event that a ‘State of Siege’ or ‘State of Emergency’ is decreed. This power is very wide in its effect and therefore could allow the government to shut-down Vodafone’s network or services.

ELECTRONIC COMMUNICATIONS LAW (LAW NO. 5/2004, 10 FEBRUARY)

Under Articles 110 and 111 of the Electronic Communications Law, the Portuguese national authority for telecommunications (ANACOM) is empowered to take certain measures where a telecommunications provider (such as Vodafone) is in breach of its legal obligations under the Electronic Communications Law and the breach in question represents a serious and immediate threat to public security, public health, or raises serious economic or operational problems to other electronic communications providers or network users.

In case of severe or repeated breaches of the obligations set out above, where interim measures are unlikely to be sufficient, ANACOM may suspend an electronic communications provider’s activities for up to 2 years or entirely revoke the provider’s authorisation to provide network services. Therefore ANACOM could suspend or revoke Vodafone’s ability to provide its network and services (effectively shutting them down) if Vodafone were found to have committed a serious breach, or be repeatedly breaching, its obligations.

BLOCKING OF URLS & IP ADDRESSES

DECREE-LAW NO. 7/2004, 7 JANUARY

According to Decree-Law 7/2004, dated 7th of January (Portuguese Electronic Commerce Law) only specific “competent authorities” may order the blocking of IP addresses and/or ranges of IP addresses. These measures can be taken in case there is a serious threat to public health; public safety, particularly regarding national safety and defence; consumers, including investors; and human dignity or public order, including the protection of minors and repression of hatred incitement on grounds of race, sex, religion or nationality, especially for reasons of prevention or prosecution of crimes or misdemeanours. The measures to be undertaken must, of course, be proportionate. The competent authorities empowered to make such orders include the judicial courts, the National Regulatory Authority and, in certain circumstances, the National Authority for Cultural Activities (Inspeção Geral das Atividades Culturais).

POWER TO TAKE CONTROL OF VODAFONE’S NETWORK

CONSTITUTION FOR THE PORTUGUESE REPUBLIC & LAW NO. 44/86, 30 SEPTEMBER

Please see ‘Shut-down of network and services’. The government powers under a ‘State of Emergency’ or ‘State of Siege’ would extend to enabling the government to take control of Vodafone’s network, should it choose to do so.

OVERSIGHT OF THE USE OF POWERS

CONSTITUTION FOR THE PORTUGUESE REPUBLIC & LAW NO. 44/86, 30 SEPTEMBER

Any powers granted to the Portuguese government in a state of siege or emergency are subject to the terms of the authorisation set by Parliament and must be proportionate. In addition, the declaration of ‘State of Emergency’ or ‘State of Siege’ does not preclude an individual’s right of access to Portugal’s courts under general law.

ELECTRONIC COMMUNICATIONS LAW (LAW NO. 5/2004, 10 FEBRUARY)

The National Regulatory Authority must exercise its powers in an impartial, transparent and timely manner. Also, the measures undertaken by the National Regulatory Authority must be proportionate and reasonable. Decisions, orders or other measures adopted by the National Regulatory Authority are subject to judicial appeal.

DECREE-LAW NO. 7/2004, 7 JANUARY

Measures undertaken pursuant to the Electronic Commerce Law can be judicially challenged.

This information was originally published in the Legal Annexe to the Vodafone Group Law Enforcement Disclosure Report in June of 2014, which was updated in February of 2015.

Social

Follow us on Twitter @IndustryDialog