Editorial of April 2020

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by Alessandra Silveira, Editor


Health-related personal data – regarding COVID-19 and digital surveillance

Article 9 of the Regulation (EU) 2016/679 – General Data Protection Regulation (hereinafter, “GDPR”) prohibits the processing of special categories of personal data, amongst them (and the ones relevant for the subject of this essay): genetic data; biometric data for the purpose of uniquely identifying a natural person; and data concerning health. However, this prohibition shall not apply if processing is necessary for the purposes of medical diagnosis; the provision of health care or treatment;  the management of health care systems; or pursuant to contract with a health professional, in accordance to point h), of Article 9/2 of GDPR and under the further conditions established in Article 9/3. In particular, the general prohibition shall not apply if the “processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of quality and safety of health care and of medicinal products or medical devices”, under point i), of Article 9/2.
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Artificial intelligence and PSI Directive (EU) – open data and the re-use of public sector information before new digital demands

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 by Joana Abreu, Editor and Jean Monnet Module eUjust Coordinator


In Ursula von der Leyen’s speech entitled “A Union that strives for more”, one of nowadays President of the European Commission’s priorities was to establish “a Europe fit for digital age”. In this sense, von der Leyen’s aspirations were to grasp the opportunities from the digital age within safe and ethical boundaries, particularly those deriving from artificial intelligence as “[d]igital technologies […] are transforming the world at an unprecedented speed”. Therefore, the President of the European Commission established that “[i]n my first 100 days in office, I will put forward legislation for a coordinated European approach on the human and ethical implications of Artificial Intelligence”. Last 1st December 2019, the European Commission took office, led by President Ursula von der Leyen. As that time lapse is passing by, there is a need to understand how a Europe fit for the digital age is taking shape. There is to say, has the European Union already made efforts to meet that digital age?

In fact, recalling Digital4EU Stakeholder Forum, held in Brussels, on the 25th February 2016, Digital Single Market was thought by inception in order to materialise it as a primary public interest in action. Concerning digital public services, it was highlighted that some of them were not as transparent as they should and that “Governments need[ed] to look at how to re-use the information already available […] and open up the data they h[ad], while adapting to current trends and making use of public services easy and simple”. In order to do so, this forum established that “Member States should implement the once only principle: once only obligation, re-use of data, making the best use of key enablers and thinking cross-border services from inception”.
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Internet, e-evidences and international cooperation: the challenge of different paradigms

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by Bruno Calabrich, Federal circuit prosecutor (Brazil)


There is a crisis in the world today concerning e-evidences. Law enforcement authorities deeply need to access and analyze various kinds of electronic data for efficient investigations and criminal prosecutions. They need it not specifically for investigating and prosecuting so-called internet crimes: virtually any crime today can be committed via the internet; and even those which aren’t executed using the web, possibly can be elucidated by information stored on one or another node of the internet. The problem is that enforcement authorities not always, nor easily, can access these data[i], as the servers where they are stored are frequently located in a different country. Thus, international cooperation is frequently a barrier to overcome so that the e-evidence can be obtained in a valid and useful way. And, today, the differences around the world in the legal structures available for this task may not be helping a lot.

The most commonly known instruments for obtaining electronic data stored abroad are the MLATs – Mutual Legal Assistance Treaties –, agreements firmed between two countries for cooperating in exchanging information and evidences (not restricted to internet evidences) that will be used by authorities in investigations and formal accusations. The cooperation occurs from authority to authority, according to a bureaucratic procedure specified in each treaty, one requesting (where it’s needed) and the other (where it’s located) providing the data. But, in a fast-changing world, where crime and information are moving even faster, the MLATs are not showing to be the fastest and efficient way.  In Brazil, for instance, the percentage of success in the cooperation with the United States through its MLAT roughly reaches 20% of the cases. Brazil, US and other countries do not seem to be satisfied with that.
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