Personal data protection and State surveillance: the risks of digital discrimination and Federal Supreme Court’s vision

Abstract

This article proposes an examination of the changes that have taken place in the organization of society in the face of the advancement of new mechanisms of monitoring and state surveillance, with the objective of identifying the dangers arising from them and the risks that a new digital discrimination entails for fundamental rights. Based on a dialectical analysis, we move on to the study of the necessary transformations of consent, revisiting the classic civil law institute, now in the wake of the new General Law for the Protection of Personal Data (Law nº. 13.709/2018). Subsequently, we move on to the study of the impact brought about by the decision rendered by the Federal Supreme Court in the legal analysis of ADI (Direct Action of Unconstitutionality) nº. 6.389/DF, which deemed the provisions contained in Provisional Measure nº 954/2020 and recognized the existence, in our national legal system, of the fundamental right to informative self-determination that, with the approval of EC (Constitutional Amendment) 115/22, was inserted in art. 5, LXXIX as a fundamental right to personal data protection. Finally, it concludes by the necessary structuring of the National Data Protection Authority (ANPD), provided for in article 55-A of the LGPD (General Law for the Protection of Personal Data), representing its creation as an instrument that materializes the objective dimension of this fundamental right.