non-compliance with judicial requests for user data
In April 2015, a judge from Lagarto determined the nationwide block of WhatsApp for noncompliance with wiretap orders. This was the third blocking decision affecting the application and the second to be implemented. The block lasted more than 24 hours.
BLOCKING ORDER
- Judicial Body
- Criminal Court of Lagarto (Sergipe)
- Judge
- Marcel Maia Montalvão
- Date of Decision
- April 26th 2016
- Type of Block
- Temporary (72h)
- Author of the request
- Police Precinct chief of the Federal Police)
- Case Number
- 201655090027
IMPLEMENTATION
OF THE BLOCK
- Agents
- Internet connection providers
- Starting date
- May 2nd 2016
- Ending date
- May 3rd 2016
ORDER LIFTING
THE BLOCK
- Judicial Body
- Court of Justice of the State of Sergipe
- Judge
- Ricardo Múcio Santana de Abreu Lima
- Date of Decision
- May 3rd 2016
- Case Number
- 201600110899
CASE ANALYSIS
Facts
As stated in the reports of the blocking order, the Federal Police requested the WhatsApp’s suspension for 72 hours, as typified in art. 12, III, of Law no. 12.965/2014, as the company Facebook Brazil did not comply with the real-time interception of WhatsApp messages, despite fine arbitration and the arrest of the company’s vice president Diego Jorge Dzordan. Targets of the investigation were 36 users allegedly involved in a criminal organization handling interstate drug trafficking. It was alleged that police investigations were halted regarding uncovering important facts as the organization uses WhatsApp as a ‘crime platform’.
Procedural History
The blocking decision was issued by Judge Marcel Maia Montalvão of the Lagarto Criminal Court, in Sergipe, following a request from the Federal Police, in a procedure of precautionary measure of telematic interception directed at the company Facebook Brazil. After the blockade, WhatsApp Inc. filed a writ of mandamus with a preliminary injunction, which was denied by the judge on duty at the Sergipe Court of Justice. On reconsideration, the injunction was granted.
Legal Grounds
In the decision that determined the blockade, judge Montalvão says he intends to impose a measure of coercion so that the company Facebook Brazil “respects the national legal system”, by intercepting WhatsApp messages. The judge acknowledges that the measure will affect millions of users, but says that Facebook and WhatsApp are not essential services under Brazilian law and that there are other forms of communication. The judge endorses an technical report of the Federal Police about the possibility of interception, despite end-to-end encryption. He also cites several provisions in the Brazilian Internet Civil Rights Framework that were being violated by the company and that would also support the blocking order. The decision also states that there is no need to follow an international cooperation agreement procedure to obtain the sought-after data, since the crime investigated occurred in Brazil and the targets are Brazilian citizens.
WhatsApp filed a writ of mandamus challenging the blocking order, claiming that the court order for breach of confidentiality was directed to the company Facebook Brazil and that until then WhatsApp neither was aware of the judicial procedure nor had it been notified. According to the decision, WhatsApp claims the disproportionate nature of the block, the legal impossibility of ordering the suspension of the application under the circumstances of the case, the lack of content retention obligation and the technical impossibility of intercepting private WhatsApp messages.
The state court judge on duty did not see illegality in the blocking order and refutes each of the points raised by the company. He asserts that the “social order and the right to security of an entire society” is at stake, that the judiciary can not be halted because of foreign companies’ resistance to comply with legitimately issued judicial orders,” and that the Brazilian Internet Civil Rights Framework grounds the blocking decision in its art. 12, III. Regarding the allegations that WhatsApp was not a party to the ongoing legal procedure, the judge replied that WhatsApp is a subsidiary of Facebook Brazil. As for the technical impossibility, he endorses a technical opinion of the Federal Police, which rejects the company’s claim of technical impossibility to intercept messages, and states that the company did not prove that it would have to change its technical standards of operation to respond to the order of interception.
After this rejection, WhatsApp filed a petition for reconsideration, saying that the decision of the panelist “contradicts the Brazilian legal framework and that there are other investigative measures,” according to the reconsideration decision’s report. This time, the judge grants the injunction, lifting the blockade, because of the “social chaos generated by the interruption of Whatsapp services.” In addition to stating that “the point has been made” after more than 24 hours of blockade, he adds that the “common good must be safeguarded with the use of the Internet and communications” and that there is doubt about the efficiency of the measure. According to the decision, “there is no way of confirming, at least for now, that information could be provided by WhatsApp or that it can be decrypted to serve Justice.”