non-compliance with judicial requests for user data
In February 2015, a judge in Teresina determined the nationwide suspension of WhatsApp for noncompliance with judicial requests for user data. This was the first blocking decision affecting the application, but never got to be executed.
BLOCKING ORDER
- Judicial Body
- Teresina's Investigation Center in Piauí
- Judge
- Luiz de Moura Correia
- Date of Decision
- February 11th 2015
- Type of Block
- Temporary (until orders are followed)
- Author of the request
- Nucleus of Intelligence of the Civil Police of the State of Piauí
- Case Number
- Public criminal prosecution n. 0013872-87.2014.8.18.0140 and 007620-68.2014.8.18.0140
IMPLEMENTATION
OF THE BLOCK
- Addressee
- Internet connection providers
- Starting date
- N/A (decision was known to the public on February 25th 2015 but it was not implemented)
- Ending date
- N/A [block not implemented]
ORDER LIFTING
THE BLOCK
- Judicial Body
- Court of Justice of the State of Piauí
- Judge
- Raimundo Nonato da Costa Alencar
- Date of Decision
- February 26th 2015
- Case Number
- Writ of Mandamus n. 2015.0001.001592-4
CASE ANALYSIS
Facts
Very little is known about this first ban on WhatsApp, since both the blocking and the corresponding lifting decisions remain under seal. According to the press, the blocking order was issued in the context of a child sexual abuse investigation. The Nucleus of Intelligence of the Civil Police of the State of Piauí requested the block.
Procedural History
The blocking decision was issued by Judge Luiz de Moura Correia, of Teresina’s Investigation Center in Piauí. Internet service providers (Global Village Telecom SA, Embratel, Claro, Telefonica, Algar, Mundivox, Tim, BT Latam and Intelig), addressees of the blocking orders, filed a writ of mandamus against the block, which was then suspended. They were not the only ones: in total, at least 13 writs of mandamus were filed against the blocking decision.
Legal Grounds
The blocking decision is under seal. In a statement, judge Moura Correia stated that “the decision to suspend WhatsApp’s activities in Brazil was due to repeated breaches of judicial orders emanating from this court in various proceedings that investigate crimes of the highest severity.” According to the magistrate, “under the allegation of not having an office in this country, [the company] remains inert to the requests of Brazilian courts.” In that context, the order aimed at constraining “WhatsApp’s collaboration with investigations conducted by the Police Authorities.”
The decision was never implemented because several writs of mandamus were filed by Internet service providers who would be in charge of executing the blockade. According to a decision that lifted the blocking order, Global Village, Embratel and Claro argued that the determination could not be fulfilled because it (i) encounters technical limitations; (ii) violates arts. 3, VI and 18 of the MCI, since connection providers could not be held responsible for the activity of application providers; (iii) does not meet the intended purpose (collect data); (iv) constitutes an “unreasonable act, since it denies access to the functionalities of the aforementioned application to a multitude of users, only to meet the pretensions of an investigative procedure whose end can be reached by means of numerous other measures.”
State court judge Raimundo Nonato of Costa Alencar granted the request for a preliminary injunction. For him, “regardless of the content of the order [that WhatsApp did not comply with], in no case is it justified the interruption of access to an entire service,” since it affects the communication between a “number of people.” Moreover, the measure lacks proportionality: it is “an attempt to stop a gigantic and heavy structure […] in favor of a criminal investigation that, very probably, has a very limited number of suspects.” The judge also reasoned that police agencies have other means of investigation: “it is not plausible that a whole investigation depends on information of a telematic nature”. He also pointed out that “if there has been – or there is – a commission of a crime through the transmission of data in the WhatsApp application (or any other software of the same nature), such facts will not be elucidated, let alone avoided with the suspension of the service, because it is known that there is a multitude of softwares of this nature, available to anyone.” Finally, he mentions the decision of MS 2015.0001.001604-7, filed by Telefónica, which ruled in the same direction.
On June 6, 2016, the decision was upheld on merit judgment.