DATA PRIVACY, TERRORISM, AND THE NEED TO AMEND THE PORTUGUESE CONSTITUTION

In the last few years the Portuguese Legislative Assembly has passed legislation that regulates secret service access to telecommunication and internet data (i.e., identification, localization, and traffic data). However, the first attempt was declared unconstitutional by the Constitutional Court and the second attempt also faces a constitutional test. Notwithstanding the effort made by Parliament to consider the legal questions that were raised by the Court, the problem seems to reside in the wording of the legal precept which only permits access to communication data within the framework of a criminal procedure. Consequently, state activities of a more preventive nature linked to the fight against terrorism fall outside the scope of the only constitutional exception to the rule that forbids access to this type of information. Therefore, a constitutional amendment is probably needed to adapt to this challenge posed by twenty-first century life.