Furthermore, different categories of communications data are subject to different
confidentiality levels of protection. The protection of confidentiality in communications entails the implementation of security measures, as well as of notifications
obligations, including security breaches or data breaches notification obligations,
which are provided for in the legislation of all analyzed legal systems. In all these
systems, there is also a national independent authority with supervisory powers in
the electronic communications sector.
124
3.3 Data Protection and Digital Forensics
Security concerns and the need to collect, preserve, analyze and transmit factual
evidence in criminal investigations, as well as in civil procedures, in the specific
context of data processed by electronic means, have determined the establishment of
a legal framework allowing, under certain conditions, restrictions to personal data
protection for these specific purposes.
That legal framework—which, in the context of electronic communications, is
designed as an exception to the confidentiality of communications—exists in all
countries comprised in the scope of this study.
125
Nevertheless, the extent those the restrictions on personal data protection and,
most importantly, the conditions under which they operate, differ significantly.
Again, the United States of America stands out in this respect among other
countries.
126 The ECPA is the primary federal legislation that regulates privacy on
electronic communications. This Act regulates the interception and collection of
electronic communications, not only when in transit but also when stored on an
equipment.
The particularity of the United States’ legal framework stems from the fact that
the ECPA has been amended several times and that some of these amendments, most
notably the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (hereinafter USA
PATRIOT Act), have greatly facilitated the access to personal data processed by
electronic means.
There is case law holding that the USA PATRIOT Act violates the First Amendment to the United States’ Constitution, as it allows the Federal Bureau of Investigation to resort to certain mechanisms in order to obtain electronic communication
service providers’ customer records without giving them the possibility of
124 See, for example, the Portuguese National Report, Sect. 3, the Cape Verdean National Report,
Sect. 3.2, and the Spanish National Report, Sect. 2.2.
125 See the United States of America’s National Report, Sect. 4, the European Union Special Report,
Sect. 3.4, the Cape Verdean National Report, Sects. 20–21, and the Singaporean National Report,
Sect. 3.8.
126 See the United States of America’s National Report, Sect. 4.
Data Protection in the Internet: General Report
25
confidentiality levels of protection. The protection of confidentiality in communications entails the implementation of security measures, as well as of notifications
obligations, including security breaches or data breaches notification obligations,
which are provided for in the legislation of all analyzed legal systems. In all these
systems, there is also a national independent authority with supervisory powers in
the electronic communications sector.
124
3.3 Data Protection and Digital Forensics
Security concerns and the need to collect, preserve, analyze and transmit factual
evidence in criminal investigations, as well as in civil procedures, in the specific
context of data processed by electronic means, have determined the establishment of
a legal framework allowing, under certain conditions, restrictions to personal data
protection for these specific purposes.
That legal framework—which, in the context of electronic communications, is
designed as an exception to the confidentiality of communications—exists in all
countries comprised in the scope of this study.
125
Nevertheless, the extent those the restrictions on personal data protection and,
most importantly, the conditions under which they operate, differ significantly.
Again, the United States of America stands out in this respect among other
countries.
126 The ECPA is the primary federal legislation that regulates privacy on
electronic communications. This Act regulates the interception and collection of
electronic communications, not only when in transit but also when stored on an
equipment.
The particularity of the United States’ legal framework stems from the fact that
the ECPA has been amended several times and that some of these amendments, most
notably the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (hereinafter USA
PATRIOT Act), have greatly facilitated the access to personal data processed by
electronic means.
There is case law holding that the USA PATRIOT Act violates the First Amendment to the United States’ Constitution, as it allows the Federal Bureau of Investigation to resort to certain mechanisms in order to obtain electronic communication
service providers’ customer records without giving them the possibility of
124 See, for example, the Portuguese National Report, Sect. 3, the Cape Verdean National Report,
Sect. 3.2, and the Spanish National Report, Sect. 2.2.
125 See the United States of America’s National Report, Sect. 4, the European Union Special Report,
Sect. 3.4, the Cape Verdean National Report, Sects. 20–21, and the Singaporean National Report,
Sect. 3.8.
126 See the United States of America’s National Report, Sect. 4.
Data Protection in the Internet: General Report
25