Tech Law

WhatsApp Goes Through Judicial Revolving Door in Brazil

A Brazilian court on Tuesday overturned a different court’s Monday order that blocked WhatsApp, the messaging site owned by Facebook, amid a criminal investigation into drug trafficking in the state of Sergipe.

The earlier judicial demand that WhatsApp provide data considered critical to the investigation came soon after a ramp-up in the level of encryption built into the app. Five major Internet service providers faced hefty fines of about US$142,000 daily if they failed to comply with the order.

The ban resulted in more than 100 million people temporarily losing access to the service.

This is not WhatsApp’s first brush with Brazilian law. Facebook Vice President Diego Dzodan earlier this year was jailed for a day after WhatsApp failed to comply with a data demand in connection with a prior drug case. WhatsApp said that it could not access messages sought by legal authorities as evidence in that case, and the executive was held briefly in contempt.

WhatsApp last month upgraded its internal security protocols to create full end-to-end encryption, which appears to be a growing trend among Silicon Valley firms to increase their security following a high-profile legal battle between Apple and the FBI. Apple fought government demands that it compromise the encryption built into an iPhone that was a key piece of evidence in the San Bernardino terrorist case.

“Thankfully, WhatsApp is now back online,” said WhatsApp CEO Jan Kourn after the ban was lifted on Tuesday.

The company was humbled by the support and patience of the Brazilian people, he added.

“We have no intention of compromising people’s security and we hope those impacted by the decision join us in making their voices heard in support of an open and secure Internet,” Kourn said. “The last thing we want to see is WhatsApp blocked again.”

Digital Rights Rollback

The decision to block WhatsApp was clumsy and disproportionate, said Katitza Rodriguez, international rights director at the Electronic Frontier Foundation.

“It’s disturbing to see the court issuing a decision that tramples over users’ freedom to communicate securely and the role of the Internet as a place for free expression,” she told the E-Commerce Times. “Brazilian judges continue to reach for censorship and mandatory blocking to enforce local law on a global Internet.”

The order surprised activists in Brazil, who considered the move out of step with the spirit of the law, noted Javier Pallero, policy analyst at Access Now.

“We did not expect that the Marco Civil, a key piece of legislation for the Internet in Brazil, would be misinterpreted once more to apply a widespread block on an app,” he told the E-Commerce Times. “Such an extreme measure is not compliant with international freedom of expression standards, such as the American Convention on Human Rights.”

A cybercrime report under discussion on Tuesday includes proposals to allow application blocking explicitly, said Pallero, which would increase the number of cases in Brazil.

The block may have impeded journalists’ ability to perform their jobs, according to the Committee to Protect Journalists.

“Journalists in Brazil regularly rely on WhatsApp in their reporting,” said Geoffrey King, technology program coordinator at CPJ. “Blocking access to such a widely used platform is an overreach that violates the open nature of the Internet and disproportionately damages the free flow of information.”

Wider Cybercrackdown

Brazilian lawmakers on Tuesday held hearings to consider a series of laws that could lead to a severe crackdown on open technology and privacy, as part of Brazil’s Parliamentary Inquiry on Cybercrime.

Officials on Wednesday are expected to vote on seven pieces of legislation that would give police warrantless access to IP addresses, allow judges to block sites used for criminal purposes, and require monitoring of content on sites and apps deemed offensive, according to EFF.

The crackdown is expected to have wide support among conservative legislators. Dilma Rousseff, president of Brazil, who is facing possible impeachment amid a major corruption scandal, is considered too weak politically to halt the measures.

David Jones is a freelance writer based in Essex County, New Jersey. He has written for Reuters, Bloomberg, Crain's New York Business and The New York Times.

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