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13 October 2022 METADATA: plea of nullity and appeal for review

This article aims to be a practical contribution to a better framework for metadata, both as a requirement for pleading nullity during criminal proceedings and for filing an extraordinary appeal for review of a judgement in light of the declaration of unconstitutionality handed down in ruling no. 268/2019.

Article 4 of Law 32/2008 of 17 July identifies the categories of data to be stored by providers of publicly available electronic communications services or of a public communications network.

The data referred to in this provision is usually referred to as metadata or data about data or, using a legal definition, traffic data.

The first conclusion to be drawn is that metadata does not cover the content of communications. A dialogue heard between interlocutors falls outside the concept of metadata.
In forensic practice, metadata is defined as detailed billing and cellular location (BTS): through the location of the user, the location of the recipient, the duration of use, the date and time, among other elements.

The second conclusion to be drawn is that the ruling of unconstitutionality only refers to metadata prior to the judge's decision ordering the telecoms operator to transmit this data to the case.

Let's analyse some cases that come up in forensic practice.

The judge authorises a telephone tap for a period of 30 days. This communication contains content and metadata. Not infrequently, we are surprised by criminal police agencies when they clarify that the dialogue between the interlocutors was not relevant to the investigation. However, from these contacts, the location, route and meetings of certain suspects (and their duration) have been ascertained, which is data of enormous investigative interest. This set of information (metadata) is not covered by the Constitutional Court's decision. The judge's authorisation preceded and therefore led to the obtaining of data that was not yet stored by the operator.

A very different situation is that in which the metadata is already stored at the telecoms operator - by law and not as a result of a court decision - and in which the judge orders that this data be transmitted/added to the criminal case. In this case, the judge's authorisation is subsequent to obtaining the data which, as we have seen, was already stored with the telecommunications operator.

This is one of the preconditions for pleading the nullity of metadata in the course of criminal proceedings and also for filing an extraordinary appeal for review.

While it may seem like an easy task to argue that metadata is null and void during criminal proceedings, there are already difficulties in verifying the requirements of Article 449 of the Code of Criminal Procedure.