Bloqueios

WhatsApp Case II

Non-compliance with judicial requests for user data

2015/12/16 | Blocked

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.

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