Facts
According to the report of the decisions, the company Facebook Brasil was ordered to break the confidentiality of WhatsApp messages and intercept them. The wiretap order originated within a police investigation investigating a criminal organization “dedicated to the commission of several crimes.”
According to the blocking decision, WhatsApp sent an email in which it (i) clarified that WhatsApp “does not copy or archive shared messages among its users,” (ii) asked five questions about the investigation, and (iii) reiterated the technical impossibility of performing interception. About the episode, in the ADPF 403 case, WhatsApp Inc. also clarifies that on several occasions between June 21 and July 18, it tried to promote a meeting between an expert in cryptography and the respective judge, the police authorities, and the public prosecutor, without success. The company also claims to have petitioned in the case, clarifying the impossibilities.
On July 18, Facebook Brazil received a letter that determined yet again the “implementation of the telematic monitoring of WhatsApp application data” linked to 23 target terminals. The letter ordered that WhatsApp “disable the encryption key by not encrypting the data traffic for a period of 15 days,” under penalty of fine and suspension of services. On July 19, Judge Daniela Barbosa Assumpção de Souza of the 2nd Criminal District Court of Rio de Janeiro determined the blocking of the application for an indeterminate period of time.
Procedural History
On July 19, Judge Daniela Barbosa Assumpção de Souza of the 2nd Criminal District Court of Rio de Janeiro determined the blocking of the application for an indeterminate period of time. On the same day, the Popular Socialist Party (PPS), author of ADPF 403 in the Federal Supreme Court (STF), which will appreciate the constitutionality of blocks on WhatsApp, filed the Petition 39344/2016-STF, informing the issuance of a new blocking order and requesting suspension of such order. Minister Ricardo Lewandowski granted the injunction. On the same day, a writ of mandamus filed with WhatsApp Inc. at the Court of Justice of the State of Rio de Janeiro was also granted.
Legal Grounds
The motivation of the blocking decision is the noncompliance with a court order: Facebook Serviços Online do Brasil, owner of the WhatsApp application, failed to comply with an order issued by a court of law, harming the continuation of a criminal investigation that “investigates serious crimes in the region.” According to her, while WhatsApp Inc. (based in the USA) “has petitioned to submit the curriculum vitae of an expert who would prove the technical incapacity to comply with the judicial decision,” the company Facebook Brazil claims that there are “no links between companies” and that Facebook’s operators do not hold “powers over the app.” For her, “following this line of reasoning both companies would always remain untouchable, without ever being subject to the Laws of the Country.”
In rejecting the arguments of Facebook Brazil, the judge cites art. 21 of the New Code of Civil Procedure (NCPC), art. 1126 of the Civil Code (CC), and the arts. 7, 10 and 11 of Brazilian Internet Civil Rights Framework, as well as precedents, which demonstrated the responsibility of the Brazilian company to legally answer for WhatsApp in Brazil. Regarding the technical impossibility alleged by WhatsApp, the decision states that “any company that establishes itself in the country providing a certain service must be able to comply with judicial decisions that may fall on it, otherwise the service itself shall be canceled out….” It adds that “WhatsApp’s encryption of communications cannot serve as a protective shield for criminal practices,” and that the public purpose of criminal prosecution “should always prevail over the private interest of the company in preserving the intimacy and the privacy of its users” . It does not cite legal grounds for the blocking order itself, but ponders that there are other means of communications available to Brazilians.
In the Federal Supreme Court, upon the petition filed by PPS in the records of ADPF 403, the injunction that suspended the blockade was granted. “The suspension of the WhatsApp application service, which allows instant messaging over the world wide web as it was determined seems to violate the fundamental precept of freedom of expression here, as well as the legislation on the subject,” with reference to the Brazilian Internet Civil Rights Framework. However, it chooses not to join “in the discussion about the obligation of the company responsible for the service to reveal the content of the messages”, since this would constitute “matter of high technical complexity, to be resolved in the judgment of the merits of the action itself.” Thereby, and based on the general power of caution, justice Lewandowski grants the injunction to suspend the blockade.
On the same day, the Court of Justice of the State of Rio de Janeiro reached the same decision. WhatsApp Inc. had filed a writ of mandamus in which it stated, among other things, (i) that it is technically impossible to disable the encryption key of only a few users without compromising the security of all; (ii) it is subject to the obligation to retain only the set of information regarding the date and time of use of the application from an IP for 6 months; (iii) the suspension is disproportionate, because it damages the rights to communication and freedom of expression of 100 million Brazilian citizens; (iv) the suspension constitutes a limitation on the freedom of choice of consumers and an interference with free competition. In granting the injunction, canceling the blocking decision until the merit judgment of the writ, the magistrate considered that the blocking decision was disproportionate, and that it was not reasonable to harm millions of Brazilians in order to obtain data from nine telephone terminals, and that the amount of the fine imposed to the company could have been increased.
