Highlights
– Both legitimate and illegitimate use of wiretaps by the government and police have increased in recent years throughout Brazil
– Wiretap investigations are typically only initiated against businesses when criminal suspicions are already present
– Government politicians and personal enemies likely to remain primary targets of wiretapping investigations in mid to long-term
Wiretapping, whether utilized with judicial permission or by unlawful techniques, is a practice facing increasing scrutiny in Brazil. Legitimate use by the police for criminal investigations has significantly increased in recent years after the implementation of a new key central computer system for use by the law enforcement community. However, the government and politicians continue to take advantage of the state’s loose requirements for initiating a wiretap investigation to target personal enemies and rivals.
While a recent scandal involving the publication of a recorded conversation among high-level government officials has led President Lula to push for an investigation into the incident, any ongoing investigation will likely not translate into widespread government reform in the near-term.
Legitimate Investigations
Brazilian constitutional laws, 9.034/1995 and 10.409/2002, represent the primary legal apparatus that the government and police employ for cracking down on organized crime and drug trafficking through surveillance methods and wiretapping. The laws emphasize “controlled action” and “controlled delivery,” techniques that support the monitoring of illegal actions to allow all members of a criminal network to be identified and arrested. While the use of lawful wiretaps is meant to be a last resort, it is widely practiced throughout the country.
Wiretapping investigations are reaching all time highs in Brazil, as phone companies received approximately 409,000 judicial wiretapping requests in 2007. Much of this recent increase can be attributed to a new computer system used by police forces called “Guardian,” which allows for the recording of hundreds of phone calls at once. According to police officials, “Guardian” has increased police monitoring capabilities and has facilitated the arrests of dozens of judges and politicians in recent years.
The legality and ethics behind the use of wiretaps by government and intelligence agencies was called into question this past summer. In July 2008, a domestic magazine published a phone conversation between Supreme Court Chief Justice Gilmar Mendes and opposition Senator Demostenes Torres. Allegedly, the clandestine recording was captured by a rogue source within the Brazilian Intelligence Agency (ABIN), which then prompted President Luiz Inacio Lula da Silva to suspend the agency’s head while an investigation was conducted. The magazine report alleged that ABIN bugged the phones of senior figures, including President Lula’s chief of staff and the head of the Senate.
While wiretapping in Brazil is meant to be an investigative method of last resort, there is growing suspicion that officials are using the government’s wiretapping capabilities for personal gains.
• In 2003, prosecutors accused Senator Antonio Carlos Magalhaes of Bahia for having his state employees wiretap personal enemies. While the Senator has since passed away, prosecutors are still pursuing the case against his security staff.
The above case is evidence of the ease with which politicians could utilize the government’s wiretapping apparatus for personal means. Cases involving the private usage of government wiretapping capabilities against political enemies is likely to continue in the near-term, as Brazil maintains a high level of general corruption within the government.
Criminal Uses
Additionally, we found several cases where the Brazilian government was active in wiretapping businesses or high-level business leaders.
• In July 2008, Daniel Dantas, a high-profile banker, was arrested for tax evasion, corruption, and money laundering. The government closely watched Mr. Dantas and his communications were monitored regularly.
• In 2004, personnel from Kroll Inc., a United States risk-consulting firm, were wiretapped and facing espionage charges over investigating Telecom Italia.
Despite the instances where wiretapping has involved businesses or business leaders,’ wiretapping in Brazil is most often used by the government as a primary tool to crack white-collar criminal cases. The majority of phone intercepts utilized against businesses were due to ongoing criminal suspicions by the Brazilian law enforcement. However, while these wiretaps were ultimately justified by criminal investigations, Brazil does not maintain as strict of a guideline for criminal evidence necessary to implement a wiretap investigation as does the judicial system within the United States.
In addition to wiretapping being used by high-level officials in the government, low-ranking Brazilian police and security officials are also known to tap the phones of politicians and others in attempts to mount extortion schemes, largely because the technology to do so is increasingly accessible.
Wiretapping to Remain Commonplace
In response to the scandal, the government’s executive branch recently introduced a bill that would make the divulging of information obtained from wiretaps by journalists and news media executives without a judge’s authorization an offense punishable with imprisonment. The Inter American Press Association (IAPA) has voiced concern over the measure, as they believe it unfairly places the blame on the media rather than addressing the unlawful conduct by government officials engaged in the wiretapping practice. Having passed the Senate, the bill is now under debate in the Chamber of Deputies (lower house of Congress) and will likely be passed into law in the near to mid-term.
While the new law will work to limit the illegal divulging of information recovered during a wiretap, we do not anticipate the practiced use of wiretaps to decrease in the near to mid-term.
