O acesso a smartphones em abordagens policiais à luz da jurisprudência do Supremo Tribunal Federal

Abstract

This article aims to expose the recent constitutional mutation arising from the jurisprudence of the Brazilian Supreme Court regarding the access to content recorded on smartphones during police searches, delving into the arguments used for such, as well as the doctrine that guides them. In this sense, it initially explores the technological innovations associated with old cell phones, highlighting the direct relationship that, henceforth, is established between the data contained therein and the rights to privacy and intimacy set forth in the Federal Constitution of 1988. Next, the principle of proportionality is discussed, in accordance with the lessons of Robert Alexy. Moving forward, the legal treatments given to the rights mentioned above in other contexts are briefly explained, namely: bank and tax secrecy; inviolability of residence; secrecy of data flow, especially of telematics. Afterwards, the judgment of HCs 91.867/PA and 168052/SP is examined, reflecting on the winning thesis in each one of these opportunities and on the use of the Judiciary as a way to solve this issue.