Seventh Circuit Federal CIVIL ACTION PUBLIC Autos 2009.61.00.007033-0 Author: Federal D: Federal Government
This is a matter of public civil suit injunction with a request for early relief granted, filed by federal prosecutors against the Federal Government which postulates that occasion the applicant's compliance with court order, namely the obligation not to the defendant, that is, not to determine or otherwise impose on manufacturers and suppliers of vehicles, or consumers of those goods, the mandatory installation of equipment including the role of screening and / or location, active or inactive, under penalty of execution or of specific daily penalty payment under Article 11 of the LACP and art. 84 CDC. The aim, as a consequence, incidental recognition of nullity of Resolution 245, July 27, 2007 CONTRAN and Ordinances 47 of 20 August 2007, and 102 of 30 October 2008, the DENATRAN.
The preliminary reproved by the defendant will be assessed opportunities in the sentence. The question under debate directly reflects what has remained initially decided, namely, implementation of compulsory and general tracker (now named locator) of the coupled vehicle antitheft device on all vehicles zero km in affront to consumer rights (free will) and the constitutional right to privacy - on the basis of active and passive data contained in the device. Initially the prosecutor explains that the joint installation on a single physical mechanism and the antitheft device tracker, denotes tying, prohibited by the Code of Consumer Protection. Yet the author explains the offense to the constitutional right to privacy is the possibility of revealing tracker, satellite, regardless of permission from the owner, the route carried by the vehicle, or at least maintain the database system to position the vehicle of the last 200 locations, even if the owner does not enable the equipment from service providers to trace.
Hence the request for early relief preventive consistent anticipate the obligation not to give defendant, was not to determine or otherwise require manufacturers of vehicles or any supplier or customer of this and the mandatory installation of equipment that includes the function of screening and / or location, active or inactive, under penalty of a daily fine under the procedural law.
The protection was accepted as follows:
Based on the foregoing, anticipate the effects of protection, strong in art.273 Cc 461 of the Code. to determine obligation to do the reverse, namely, not to determine or otherwise impose on manufacturers and suppliers of vehicles, or consumers of those goods, the mandatory installation of equipment including the role of screening and / or location, active or inactive, and, consequently, anticipate incidental recognition of nullity of art. 1, § 1 last part of Resolution No. 245 of CONTRAN, and items 1.1 and 2.1 of the Annex to Decree No 102/08 of DENATRAN, contrary to this decision. In this context, the deployment of anti-theft apparatus - M blocker should be held separately from the scanner, through the necessary technical adjustments. I must stress, therefore, the content of decisum the optional use of crawler, through application of the consumer / User's vehicle to the rightful owner. "
This decision was the subject of bill of review by the defendant, while the TRF of the 3rd Region dismissed the appeal has suspensive effect.
There is therefore the sharpness of the court order, a) a declaratory content-intimidating, that is, do not order the defendant, just so that does not require third parties to implement the compulsory installation of tracker and locator or in vehicles; b) the stamp material, determined to not be established in the same mechanism the antitheft device and scanner, as the latter was seen as offensive to the right of privacy (assuming your installation only by request of the consumer).
The content of the description of the Federal Prosecutor, the defendant incurs affront to the court, precisely because promulgate administrative orders that violate the court order in force. Indeed, the item 2.2 of Annex Il Ordinance 253/2009 of DENATRAN is categorical in this respect to have:
"betray the antitheft device is a single device with the mandatory functions of autonomic blockade (local) and remote. The modules of Figure 1 are functional rather than separate devices with the exception of the battery module help ... the communication module bi-directional must leave the factory fully tested and integrated with other functional modules described in Figure 1 (...) This module (in designed to send and receive information from a service center. Details of events, set the strategy for protection vehicle, should always be sent to the central. commands lock and unlock must be received and processed by the anti-theft equipment, as well as the activation and deactivation of the alert ... "
In turn, the Resolution No. 82/2009 changed CONTRAN contested Resolution No. 245/07, but kept in full its operation, namely, the deployment of passive tracker. Here is the reading of his novel writing (emphasis added):
"It will be the owner to decide to purchase the function of vehicle location and subsequent clearance of equipment from service providers located by setting the type and scope thereof."
But if it is up to consumers to decide only on the function of the browser, it remains clear that the tracking mechanism is already deployed on the vehicle, a situation that contradicts the semantics and meaning of the above pointed to a court order, because this scanner in the vehicle and on the immanent data of their last 200 locations, as was demonstrated.
And precisely in this sense offers the automakers, according to reports YAMAHA MOTOR AMAZON LTDA. the fls. 1013:
The physical composition of the equipment as described in item 2.2 of Annex II of the Ordinance No. 253/2009 is identical to that described in Section 2.2 of the Annex to Decree 10,212,008, repealed by the current regulatory framework.
Because it is the identity of equipment, has · clear as the same legal infraction. · Emphasized here that the regulatory focus determines the accumulation of equipment antitheft mechanism location / crawler, so that their only function is enabled.
This determination also contrast with the previous court order - which prohibits precisely the compulsory installation of such a mechanism, also insult the Code of Consumer Protection, by tying up authentic:
Article 39. It is forbidden to the supplier of goods or services, among other abuses;
I - influence the supply of product or service for the supply of another product or service, and without just cause, the quantitative limits;
As to why the affront to the right of privacy, there is already:
(...) To determine whether the request for early relief in this case involves differing, it is imperative to examine whether the technological device (which spells out in one place an antitheft mechanism / blocker and a scanner) that deals with Resolution No. 245 of CONTRAN , although not authorized by the crawler vehicle owner, is capable of storing data on vehicle location, or locations of their last?
Faced with the evidence collected in the file, especially in the documentation of fls. 711,175 notes that yes, the engine technology in question is equipped with technology that allows its functionality is not enabled by the consumer / owners of the vehicle.
In this sense, are the answers to the question of the makers of the Federal Public Ministry, as shown from the conclusion of companies automakers, FORD, VOLKSWAGEN, PEUGEOT CITROEN OF BRAZIL, RENAULT, GENERAL MOTORS, and the National Association of Automobile Manufacturers . about the possible tracking of the vehicle, even if not enabled the crawler at the consumer / owner.
In unison voice, automakers contend that the wording of item 1.1 and 2.1 of Annex Ordinance n "102/08 tracing is possible, though not inhabited by the User. Here is the wording of these items:
"1.1-equipment antitheft antitheft equipment should have all its functions independently tested and functional activation of the monitoring / tracking. Not the activation of this service, does not involve the disabling of functionality, but the placement of communication module on standby for possible activation of the same.
2.1 - Function All functions of the antitheft device should always be active even if the tracking service has not been enabled by the User. In this case, the communication module must be in standby mode (reduced power consumption). The initialization signal receiver for positioning and maintaining the continuous achievement of these signs should be maintained and have always stored at least the last 200posições. All events that comprise the security strategy of the anti-theft equipment should also be processed and stored. "
Hence the reaction from automakers, which highlight the final leg of response 'to question the prosecutor office of Volkswagen maker of outstanding knowledge and tradition in the field of domestic vehicles, Thus, in view of the provisions of Resolution and Ordinance mentioned above, from of installation of the scanner, the vehicles will be theoretically capable of location, where the consumer n / to purchase the service from providers of tracking services. (pages 71/73), in turn, the very defense of the defendant points out that a tech screen houses the last 200 locations the vehicle has turned off the tracker. However, considering the defendant that the DENATRAN not able to access such data, it requires interconnection with other subjects from the system, ie, the telecommunication companies. However, this conclusion does not fit the evidence so far collected, so that the defendant does not prove the fact precluding the right of the author, former saw the provisions of art. 333, II, of the Code of Civil Procedure.
In fact, the technological system in 4Reality in fact the last 200 home locations of the vehicle, even off the tracker, even if such information is encrypted or require password for future location, the database does exist (though latent) despite contrary intention of the consumer / owner. This situation pollutes against the fundamental right of intimacy and privacy as set out in art. 5 "X of the Constitution of the Republic: are inviolable intimacy, privacy, honor and image of persons are entitled to compensation for property or moral damages resulting from the violation;
Indeed, the defilement of privacy is evident that the consumer / owner of the vehicle does not acquiesce in the clearance of the vehicle, and yet, the systematic technology is able to capture a database of their latest locations. This attitude distorts the sense of freedom and induces a feeling of Caputo diminutio the dignity of the human person. feeling devastated because of intimacy. Finally, a firm inferiority of citizens before the state machine that is one click technology to monitor ordinary citizens, as outlined in science fiction by George Orwell in his book 1984, which summarizes the idea of Big Brother2 the state apparatus to control the individual by Relentless surveillance technology. (...)
Just as the limits of relativizing the right to privacy, the learned Attorney General Márcio Araújo Schusterschitz highlights its concern to the technological apparatus present in the original, which I trascrevêlo for sale (emphasis added):
The art. 5 of the Federal Constitution, section X, determines the inviolability of intimacy and privacy of the person. This constitutional right gives its holder the assurance of a sphere of isolation, a sphere of control of information available about oneself e. Moreover, an autonomous sphere of decision-making individuals or especially private.
We have, by this stage, that the requirement of mandatory monitoring equipment hurts the privacy of three balls that the Constitution protects.
The third element of privacy is a person's ability to make decisions on conditions that affect it precisely. This is to the right of non-interference in private matters.
XI-Conclusion and Warning Mandatory Crawler matter in a captive market in favor of an economic sector, through a combined sales, consisting of a vehicle that the consumer wants, and equipment, which may not. But it is invasive and offensive to your privacy and the purpose is to map Io the use of your vehicle. This equipment you put in a system that gives the public a right which does not have to is to develop databases of users of vehicles and their movements, thus making the tracing of the population governmental function delegated. This system is disproportionate to include the entire universe of vehicles, without distinction. It is' immoral to give the public an option that distorts the relationship between state and society, giving. Administration tools inappropriate in a democratic state (loss of control of resources). It is also a misuse. requiring the particular burden of public safety and distorting the terms of the state presence in the face of crime - including no measure or have measured how the crime will react to that.
Furthermore it would require to have the object of this action in perspective and in a broader context. H so you can lie by the question: what next? The answer to this question. of course, depending on the opinion of the judiciary in such proceedings. At least, so we have. But you can see that the trace as a precedent will open the door to crawl over things and more purposes. In the context of transit or not. Also open earlier for the Administration regulatory use (and enforce) more and more cross-subsidy. Everything that you want to be mandatory, leaving, perhaps, the right to use or not use. Finally, the precedent would be left open to the public give up its public security institutions and transform the individual in your biggest tool for combating crime.
That said, a logical premise-now legally defines the dispute under the pragmatic point of view toward reform of technological equipment in line with constitutional rights. However, if the Resolution No. 2455 requires the prior consent of the owner! Consumer vehicle to enable the crawler, it remains illogical the need to engage in one mechanism the antitheft device / blocker and the crawler, and uneconomical - both because it is dogma of the economy to the free offer better prices, contrary to what the defendant.
Thus, fixing the crawler must be separated from the antitheft device, as states the public prosecutor, to insulate the logic of the system that supports the will of the consumer / owner of the vehicle to decide on the acquisition and the constitutional values privacy and free will, tenets of freedom and the rule of law itself erected by the Constitution of 1988 state that already sets periculum in arrears.
In this tune, just because they look the same physical instrument, and for the same reasons, I recognize the illegality and unconstitutionality of the Ordinance No. 253/2009 by DENATRAN and Resolution No. 82/09 by CONTRAN.
Based on the foregoing, anticipate the effects of protection, strong in art. 273 CC 461 of the Code, to determine obligation to do the reverse, namely, not to determine or otherwise impose on manufacturers and suppliers of vehicles, or consumers of those goods, mandatory installation of equipment that includes the function of tracking and or location, active or inactive, and, therefore, anticipate incidental recognition of nullity of Decree No. 253/2009 of the DENATRAN and Resolution No. 82/09 by CONTRAN therefore contrary to the previous decision, and the present.
In this context, the deployment of anti-theft apparatus - blocker - should be held separately from the crawler. through the necessary technical adjustments and mechanics. I must stress, therefore, the content of decisum the optional use of crawler, through application of the consumer / User's vehicle to the rightful owner.
Intime up. Dispatches letters to the authorities responsible for DENATRAN and CONTRAN to comply immediately, under penalty of law, and the need to observe the art. 14, V, of the Code of Civil Procedure.
Clarify the MPS on the need to dispatch letters to the automakers.
Sao Paulo, September 28, 2009
DOUGLAS CAMARINHA FEDERAL JUDGE GONZALES SUBSTITUTE
copyright 2008