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Building pathways for data justice in Brazil: The role of Public Defenders in personal data protection

by Eduardo Mendonça e Hana Mesquita

The launch of the digital book “Building Pathways for Data Justice in Brazil: The Role of Public Defenders in Personal Data Protection” featured a panel composed entirely of women, and we had the honor of welcoming Luciana Gross Cunha [1] (Professor at Fundação Getúlio Vargas – FGV-SP), Estela Guerrini [2] (Public Defender at the Public Defender’s Office of the State of Rio de Janeiro), Marina Lowenkron [3] (Public Defender and Data Protection Officer at the Public Defender’s Office of the State of Rio de Janeiro), and Johanna K. Monagreda [4] (Researcher and Project Leader at Data Privacy Brazil Research Association).

The event was moderated by lawyer and researcher Hana Mesquita from the Data Privacy Brazil Research Association and highlighted topics related to the constitutional protection of privacy and informational freedom for socioeconomically vulnerable populations, through sensitive and enriching statements from the panelists. From this perspective, the digital book aims to highlight the structural inequalities in this country as challenges to personal data protection and access to justice, as well as the role of Public Defenders in the realization of rights.

In this blog post, we summarize and highlight the main points of our discussion, which you can read in full here. 

The e-book “Building Pathways for Data Justice in Brazil: The Role of Public Defenders in Personal Data Protection” is the result of the project “Expanding the Role of Public Defenders in Data Protection in Brazil”, initiated in 2020 with support from the Ford Foundation. “Over the past two years, we have established a relationship of trust and partnership with Brazilian Public Defenders, especially with the Public Defenders of the states of Rio de Janeiro and São Paulo.” Recognizing the interinstitutional bond valued by this civil organization and the institution of the justice system, research leader Johanna K. Monagreda emphasizes the importance of interinstitutional collaboration in light of the centrality of personal data protection as an aspect of justice and the role of Public Defenders in ensuring constitutional citizenship, with a focus on the most vulnerable population.

“The launch of this book marks a turning point in the understanding of personal data protection as a tool for social justice”. Hana Mesquita, lawyer and researcher at the Association, begins her moderation by discussing the impact of the digital book on social and institutional relations, as well as on the second phase of the project, which is currently in development. She also reminds us that “it is necessary to incorporate concerns about equity, emancipation, social justice, and structural transformation into discussions on data protection and digital rights.”

Luciana Gross Cunha

The author of the foreword to the e-book, Luciana Gross Cunha, begins her speech by sharing that the production of this material, as well as the First Steps Guide for the Adaptation of Public Defenders to the LGPD, demonstrates how research can engage with justice institutions. “When we talk about access to justice in Brazil, a society marked by patriarchal, racist relationships, with huge social and economic inequalities, the Public Defender’s Office emerges as a space for interaction between the State and the population, as well as a fundamental instrument to reduce these inequalities through access to justice”.

“believe that access to justice is a fundamental right through which we can foster greater equality, and more than that, include these people in citizenship.” For her, the Public Defender’s Office is able to reconcile different demands and ensure that these discussions do not remain confined to the institution, but are made available to the entire public sector and third-sector entities”. And the Public Defender’s Office does this, now regarding the LGPD, with a huge challenge: using information as a mechanism for management in the administration of justice while simultaneously protecting the data of its users, who are naturally a population on the margins of rights and citizenship as we understand it in a democratic rule of law”.

It is also stated that the digital book “Construindo caminhos para a justiça de dados no Brasil: o papel das Defensorias Públicas na proteção de dados pessoais” is fundamental for us to consider two dimensions:

• The technological advances made in the administration of justice and how to use the information produced from the services provided by the Public Defender’s Office, as well as from the strategies used by the superior councils of each of the Public Defender’s Offices;
• Thinking of information as a right to be protected.

Luciana emphasizes that the data of those assisted should not be used as mechanisms to deepen inequality, but rather serve as tools for individuals to truly gain the recognition of citizens and hold a position within the democratic rule of law. “The challenge of the Public Defender’s Office is much greater than that of the rest of the public administration, in my view. And this is exactly because the Public Defender’s Office works in these two areas, with these two instruments”.

Estela Guerrini

Coordinator of the Consumer Defense Center at the Public Defender’s Office of the State of São Paulo, Estela Guerrini reaffirms the role of the Public Defender’s Office as an institution within the justice system, with the mission of defending the rights of the most vulnerable populations. “In order to defend these rights, the institution needs to collect and process personal data of the populations it serves, such as registration data, income information, which leads us to the enormous database that the Public Defender’s Office possesses, requiring the challenge of ensuring that the institution is always compliant with the LGPD (General Data Protection Law)”.

“The most disadvantaged populations end up providing their personal data in exchange for access to services, including public services”. The Public Defender exemplifies the work of the Consumer Defense Center at DPE-SP and discusses two Public Civil Actions: the first, filed by Idec – the Brazilian Institute for Consumer Defense, against the 4-Yellow Line of the São Paulo metro; and the second, seeking the ban of facial recognition technology at São Paulo Metro stations, which is still ongoing.

For her, all discussions about the implementation of facial recognition technology in the public transportation system “touch on the right to non-discrimination and the right to equality. It is a technology that has been extensively studied, and in many cases around the world, there have been instances of false positives, specifically false positives with the Black population. This is not an appropriate technology”. 

Finally, Guerrini emphasizes the importance of the training course held between 2020 and 2021 by the Data Privacy Brazil School, in which she was a scholarship recipient.

Marina Lowenkron

The Public Defender of the State of Rio de Janeiro, Marina Lowenkron, begins her panel by contextualizing the scenario in which data justice is being discussed. “Until recently, if you spoke about digital rights and data, it was nothing that connected, it was a very distant reality.” She also emphasized the importance of society, together with justice institutions, becoming aware that we are living in a world that is constantly experiencing technological and digital innovations in a state of surveillance and constant monitoring. “This constant monitoring allows for a proliferation of data that can be correlated in different ways by various powers, whether in the private sector or the public sector, and this impacts the targeted offering of products, services, and advertising, factors that end up determining our choices”.

This landscape brings new challenges to the Public Defenders. During her speech, Marina highlighted the need to incorporate and recognize the potential and challenges of data protection, both in managing the institution and in defending those assisted. “The Public Defender’s Office has a fundamental role in acting, within its scope, against the spread of fake news and the profiling of this information for political and illicit use”. 

As an example of action, she cites a Public Civil Action filed by the Public Defender’s Office of the State of Rio de Janeiro, through the Consumer Defense Center in partnership with the Human Rights Defense Center, against the companies Telegram and Signal. The action demands that these companies align their data protection policies and have a representative as a Data Protection Officer in Brazil.

Next, she states that the Public Defenders should embrace their institutional role in safeguarding information so that data processing is done in a non-discriminatory manner. “Non-discrimination is a very important topic for us to act in favor of data justice within this institution”.

She also acknowledges that “data justice also presents a great challenge for managing the Public Defender’s Office, because we need to always be attentive to our compliance process to avoid that we, as an institution that processes large amounts of data throughout the state, violate our own compliance”.

Education in Rights is also an important function of the Public Defender’s Office in promoting data justice. The Research Association and the Public Defender’s Office of the State of Rio de Janeiro are conducting a joint research project that will support the development and implementation of digital rights education for the vulnerable population served by the Defender’s Office.

Johanna K. Monagreda

The research leader and panelist at this event highlights the role attributed to the digital book in translating the texts contained within it, theoretical and academic discussions, beyond that, touching on practical applications of privacy and data protection. “The process of organizing the book made us realize a common concern, very well articulated in the preface by Professor Luciana Gross Cunha, and so well discussed here: what are the challenges of thinking about and ensuring personal data protection in a society deeply structured by capitalist-racist-patriarchal systems, as Lélia Gonzalez mentions”.

This capitalist-racist-patriarchal system determines the distribution of wealth, political power, the arrangement of material goods, access to justice, among many others. “It also determines the possibility of visibility and representation, and even determines the existence of some social groups.” These determinations lead to social groups suffering different forms of violence. “We call it the genocide of Black youth, but we can also think about it in relation to the Indigenous population and the LGBTQIA+ population”.

“All the works available in the digital book raise the concern of how structural inequalities in Brazil present enormous challenges for personal data protection and access to justice.” As mentioned, access to justice can be understood as access to the justice system, as well as social justice. “To take on the protection of personal data from a perspective of social justice, for us, means recognizing that the way social, economic, and political relations are organized in this country is essentially unjust and needs repair”. 

In this regard, Johanna Monagreda states that incorporating a perspective of social justice implies that the use, treatment, and collection of personal data should be directed towards building truly just and equal forms of social interactions, as well as a new civilizational social pact in service of emancipatory struggles.

Finally, the afterword was written with the intention of signaling the next steps of the project “Expanding the Role of Public Defenders in Data Protection in Brazil”. It contains the concerns guiding this Research Association, and “which arise from the recognition that personal data needs to be thought about from a perspective of social justice and, furthermore, from the experience of oppression of the most marginalized and vulnerable groups”. As a civil organization, we understand that there is a disconnect between the privileged subject and the reality of material and symbolic violations faced by the majority population of this country, and we believe it is time to open these discussions for public debate.

The digital book launch event ends with over 1.5 hours of enriching discussions and audience questions, focused on the human review of automated decisions in cases of high risk to rights and the panelists’ opinions on Bill 21/2020 on artificial intelligence. If you missed the conversation and would like to catch up, come check out the full chat here.

Until next time!