non-compliance with judicial requests for user data
In December 2015, a judge from São Bernardo do Campo determined the nationwide suspension of WhatsApp for noncompliance with judicial requests for user data. This was the second blocking decision affecting the application, but the first to be implemented. The block lasted almost 12 hours.
BLOCKING ORDER
- Judicial Body
- 1st Criminal Court of São Bernardo do Campo
- Judge
- Sandra Regina Nostre Marques
- Date of Decision
- December 16th 2015
- Type of Block
- Temporary (48h)
- Author of the request
- Public Ministry
- Case Number
- Telephone interception procedure n. 0017520-08.2015.8.26.0564
IMPLEMENTATION
OF THE BLOCK
- Agents
- Internet connection providers
- Starting date
- December 17th 2015
- Ending date
- December 17th 2015
ORDER LIFTING
THE BLOCK
- Judicial Body
- Court of Justice of the State of São Paulo
- Judge
- Xavier de Souza
- Date of Decision
- December 17th 2015
- Case Number
- Writ of Mandamus n. 2271462-77.2015.8.26.0000
CASE ANALYSIS
Facts
Little is known about this second WhatsApp blocking decision, as it remains under seal. As can be inferred from the report of the decision that lifted the blockade, the order was issued within a drug trafficking investigation and addressed to Facebook Brazil. Telematic interception of WhatsApp messages linked to three accounts (one Brazilian line and two Paraguayan lines) was requested. According to the São Paulo Court of Justice, “WhatsApp did not comply with a court order of July 23, 2015. On August 7, 2015, the company was notified again and a fine was imposed in case of non-compliance.” As the alleged noncompliance persisted, the Public Prosecutor’s Office made the request for the suspension, with reference to the Brazilian Internet Civil Rights Framework.
Procedural History
The blocking decision was issued by Judge Sandra Regina Nostre Marques of the 1st Criminal Court of São Bernardo do Campo. WhatsApp Inc. filed a writ of mandamus against the ruling, alleging that “(a) on the pretext of investigating three telephone lines, it [the decision] diverts millions of users, including utility networks; B) [the decision] did not require the petitioner to comply with the judicial order, which was possible through international legal cooperation; C) [the decision] violated the Brazilian Internet Civil Rights Framework (Federal Law No. 12.965/14) and Decree No. 3.810/01.” Judge Xavier de Souza of the Court of Justice of the State of São Paulo granted the request for a preliminary injunction within the writ of mandamus. This judgment was also valid for the Habeas Corpus n. 2271417-73.2015.8.26.0000, which was brought by the Internet service provider Oi against the same blocking order.
Legal Grounds
The blocking decision remains under seal, so the details of its reasoning are not publicly known. According to the São Paulo Court of Justice, “the Public Prosecutor’s Office requested the blocking of services for a period of 48 hours, based on the Brazilian Internet Civil Rights Framework, which was granted by Judge Sandra Regina Nostre Marques.”
The decision to suspend the ban, in turn, weighed that “regardless of knowing about the companies being nominated in the initial distinct,” ie in spite of the pending question whether Facebook Brazil and WhatsApp Inc. respond separately for compliance with court orders for access to user data, “what matters now is whether the attacked [blocking] order should persist or not.” For him, “it is not reasonable that millions of users are affected as a result of the inertia of the petitioner [WhatsApp Inc.], especially when other means available to achieve the desired result have not been exhausted.” It would still be possible to increase the amount of the fine, he said. Finally, he saved a “deeper discussion” to the merits judgment of the writ of mandamus.