FUNDAMENTAL DIGITAL RIGHTS NOT ENUMERATED IN THE 1988 CONSTITUTION AND PL 2.338/2023

Abstract

This article discusses the possibility of the constitution of the algorithm being considered a fundamental digital right not listed in the 1988 Constitution and in PL 2,338/2023. The text is divided into three sections. The first historically analyzes non-enumerated fundamental rights. The second deals with digital reality as generating a new dimension of fundamental rights (the virtual dimension) in the face of the analogue dimension, and data protection as a fundamental right not listed later expressed in the constitutional text, through the addition of section LXXIX to art. 5th of CF/88. The third deals with the use of artificial intelligence in Brazil and the opening clause for rights not listed in PL n. 2,338/2023 and the possibility of the constitution of the algorithm becoming an unenumerated digital fundamental right. This is a narrative-type bibliographic research in which we sought to review the relevant literature and identify the state of the art of the researched topic. Legislation, doctrine and jurisprudence relevant to the topic, information from the Federal Supreme Court, as well as documents and websites were consulted. Even recognizing the difficulty of treating the constitution of the algorithm as an unenumerated fundamental digital right, it is concluded that the algorithm is necessary to constitutionalize, to preserve democratic and constitutional values. Finally, it should be noted that this study only dealt with initial ideas on the subject, so that because such digital rights project the future, it would not be possible to reach conclusions on the subject.