Art. 13-B. If necessary for the prevention and repression of crimes related to human trafficking, the member of the Public Prosecutor’s Office or the police chief may request, upon judicial authorization, the companies providing telecommunications and/or telematics services to immediately make available the appropriate technical means – such as signs, information and others – that allow the location of the victim or suspects of the ongoing crime. (Included by Law No. 13,344 of 2016)
§ 1 For the purposes of this article, signal means positioning of the coverage station, sectorization and radiofrequency intensity . (Included by Law No. 13,344, of 2016)
§ 2 In the event referred to in the caput, the sign: (Included by Law No. 13,344, of 2016)
I – will not allow access to the communication content of any nature, which will depend on authorization judicial, as provided by law; (Included by Law No. 13,344 of 2016)
II – must be provided by the cellular mobile telephony provider for a period not exceeding 30 (thirty) days, renewable for a single time, for the same period; (Included by Law No. 13,344 of 2016)
III – for periods longer than that referred to in item II, it will be necessary to present a court order. (Included by Law No. 13,344 of 2016)
§ 3 In the event provided for in this article, the police investigation must be initiated within a maximum period of 72 (seventy-two) hours, counted from the registration of the respective police incident. (Included by Law No. 13,344, of 2016)
§ 4 If there is no judicial manifestation within 12 (twelve) hours, the competent authority will request the companies providing telecommunications and/or telematics services to immediately make available the appropriate technical means – such as signals , information and others – that allow the location of the victim or suspects of the crime in progress, with immediate communication to the judge. (Included by Law No. 13,344 of 2016)
Repression of crimes related to human trafficking
Provision of information by telecommunications and/or telematics companies: The prosecutor or police chief may request, upon judicial authorization, the companies providing telecommunications and/or telematics services to immediately make available the technical means that allow the location of the victim or of suspects in an ongoing crime.
Need for judicial authorization: The caput of the device – and normally the norm must be interpreted from the caput , and not from its paragraphs – conditions that the measure be taken with prior judicial authorization, which is confirmed by paragraph 4, by providing that , if the judge does not rule on the application within twelve hours, the competent authority will request the companies providing telecommunications and/or telematics services to immediately make the appropriate technical means available. The mandatory judicial authorization is based on article 5, item X of the CF, which protects the privacy of the citizen. There are those who maintain, based on item III, that judicial authorization would only be necessary after sixty days of application of the measure. It doesn’t seem like that to us. This interpretation starts from the item to change and make meaningless both the caput regarding paragraph 4. Furthermore, there is no reason to justify the waiver of judicial authorization. Jurisdictional control of such an invasion of privacy is needed. Two people at least (agent and victim) will be tracked if they are using cell phones. Wherever they are, investigators will know their every move. There needs to be control. There is no inconvenience in having jurisdictional control. On the contrary. The police state must be avoided. In that in which, according to Raymond Carré de Malberg, “the administrative authority may, at its discretion and with more or less complete decision-making freedom, apply to citizens all the measures it deems useful to be taken on its own initiative, to face circumstances and to achieve at all times the purposes proposed.Contribution to the General Theory of the State , Paris, Société du Recueil Sirey: 1920).
Content of communications: The requirement dealt with in this device does not authorize access to the content of communications. It is even a crime to intercept telephone, computer or telematics communications without judicial authorization ( Article 10 of Law No. 9,296/1996 ).
Correct and broader measure to be taken by the authority, including in other crimes: Bearing in mind that the measure provided for in this device does not allow access to the content of communications, the correct measure to be required by the authority is the same, plus the requirement contained in Law n. 9,296/1996, that is, the interception of the flow of communications. Even this broader measure need not be limited to crimes related to human trafficking. Who knows the reason for the limitation made by the legislator in this device. It can be expanded, reaching kidnapping, reduction to a condition analogous to that of a slave, among other crimes. The reference to human trafficking, made by the legislator, is illustrative,
Deadlines: The deadline for providing information is 30 days. By simple judicial order, it may be renewed for the same period. After the renewal term, a court order setting a new term will be required. It may be the period that the judge deems reasonable, as long as he justifies it.
Initiation of inquiry: The police inquiry must be initiated within a maximum period of seventy-two hours after the news of the fact. The inquiry does not fail to represent a guarantee that citizens are not being investigated for no reason or even for illegitimate reasons.
Judicial manifestation within twelve hours: If judicial authorization is required by the prosecutor or police chief, if it is not granted within twelve hours, telecommunications and/or telematics service providers must immediately make the appropriate technical means available. Companies providing telecommunications and/or telematics services must demand proof of the protocol of the request made to the judge. On the other hand, once the judge becomes aware of the application, there is nothing to pr
