This past March 27, Congress installed the Mixed Committee of Provisional Measure 869/2018, which amended the General Law on Personal Data Protection - LGPD.
The Commission brings together deputies and senators in charge of analyzing and discussing the conversion of the Provisional Measure into law, with or without the more than 170 amendments proposed in the House and Senate at the beginning of the legislative year. Once the discussions are closed, the final text will be submitted to Congress for approval.
The main content of the Provisional Measure was the organization and definition of competencies of the National Data Protection Agency - ANPD, issues that had been vetoed in the LGPD. Several proposals for amendments to the Provisional Measure aim to bring greater independence to the ANPD, reducing the influence of the President of the Republic. There are proposals to restrict the power of the President of the Republic, especially to appoint members of the ANPD's board of directors, such as, for example, conditioning the appointment of members or subjecting them to sabbaticals. Many of the proposals aim to make the ANPD an autarchy of the indirect federal public administration, as was originally provided for in the LGPD, which could be linked to different ministries, such as Justice or Economy, depending on the proposal.
Still other proposals discuss the powers of the DPA. These proposals range from granting authority to the ANPD to resolve controversial interpretations and impose the preparation of data protection impact reports, to the need to be informed of certain processing acts by private entities, to the power to conduct audits of these entities to confirm compliance with the LGPD. As for the imposition of penalties related to data processing, we have proposals in different directions, both to restrict the actions of other public authorities and also to expressly authorize the actions of the Public Prosecutor's Office and consumer protection bodies in this area.
The composition of the National Council for Personal Data Protection, with an eminently advisory function to the ANPD, is also the subject of controversy. Several proposals suggest changes in the composition of this board, including quorums for industry representatives, labor unions, privacy entities and even members of Congress.
It is important to note that congressmen dissatisfied with other points of the new wording of the LGPD also took the opportunity to propose amendments on various other topics - including some that do not appear in the Provisional Measure, such as the provision for differentiated treatment for elderly data and the conceptualization of a category of anonymized data, intermediate between personal data and anonymous data. One of the most targeted topics was the treatment of sensitive data, dealt with in a considerable part of the proposals, which, in general, call for greater strictness. Another was the nature of the data protection officer, which some amendments propose should always be a natural person, as originally provided for.
We see that the general thrust of most of the proposals is the greater protection of the data subject, not only in the topics already mentioned, but also in other points of the LGPD, such as changes in the cases of data processing by public agencies or private entities that provide public services. We can also point out a special interest of congress members in the effectiveness of the right to review decisions by algorithms. On the other hand, we can see proposed amendments in the interest of the industry, which exempt some communication treatments, equate for-profit research entities to those without such purpose, or define, from the outset, that smaller companies should not be subjected to the full rigour of the law.
With so many amendments to be discussed, it is unlikely that the LGPD will continue without further amendments before it enters into force. There are opposing proposals on several points and even proposals that suggest a simple return to the originally approved text of the LGPD regarding specific topics. However, except for the organization and powers of the ANPD, we do not expect major changes in the general systematics of the law.
On the same date of the installation of the Joint Commission, Provisional Measure 869/2018 had its effectiveness extended for 60 days, until June this year. It is being urgently processed and we expect it to be voted in both houses of Congress by the end of May. The activities of the Mixed Committee may be followed by the Senate website.
