{"id":470,"date":"2017-06-26T11:37:31","date_gmt":"2017-06-26T14:37:31","guid":{"rendered":"http:\/\/bloqueios.info\/?p=470"},"modified":"2017-06-28T15:07:36","modified_gmt":"2017-06-28T18:07:36","slug":"public-hearing-on-encryption-and-whatsapp-blockages-the-arguments-before-the-stf","status":"publish","type":"post","link":"https:\/\/bloqueios.info\/en\/public-hearing-on-encryption-and-whatsapp-blockages-the-arguments-before-the-stf\/","title":{"rendered":"Public hearing on encryption and WhatsApp blockages: the arguments before the STF"},"content":{"rendered":"

By Jacqueline de Souza Abreu<\/em><\/h4>\n

Translation by Ana Luiza Ara\u00fajo<\/em><\/h4>\n

 <\/p>\n

On June 2nd and 5th 2017, the Supreme Federal Court (STF) held a public hearing to discuss the constitutional complaints ADPF 403<\/a> and ADI 5527<\/a>. The first one, whose rapporteur is justice Edson Fachin, discusses the compatibility of judicial orders determining blocks on WhatsApp with the freedom of communication. The second, whose rapporteur is justice Rosa Weber, discusses the constitutionality of items III and IV of art. 12 of the Brazilian Internet Civil Rights Framework<\/a> (Marco Civil da Internet – MCI<\/strong>), which authorize the imposition of sanctions of \u201ctemporary suspension\u201d and \u201cprohibition of exercising activities\u201d to internet connection and application providers that violate data protection rules. More on the subject of these complaints and the interpretative disputes<\/a> underlying them can be found here<\/a>, here<\/a>, and here<\/a>.<\/p>\n

This post is a record of the opinions and discussions held at the hearing. The attributions of statements to speakers were linked to segments of the video recordings (in Portuguese) that support them. All videos are available on YouTube (here<\/a>, here<\/a>, here<\/a>, and here<\/a>).<\/p>\n\"photo_2017-06-26_11-20-21\"\n

 <\/p>\n

Encryption<\/strong><\/h3>\n

According to the dispatch order<\/a>, the hearing was called on because the cases impose questions that \u201cextrapolate the strict legal limits and demand transdisciplinary knowledge about the topic\u201d. Particularly, the STF showed interest in understanding whether WhatsApp is capable of intercepting<\/em> the content of messages, a conflict that is at the root of the blocking orders against application, which was punished for not complying with judicial orders for interception\/\u201cbreach of secrecy\u201d.<\/p>\n

On the invitation, the STF solicited that the experts who were going to be heard offered answers to the following questions:<\/p>\n

\u201c1- In what consists the end-to-end encryption used by messaging applications such as WhatsApp?<\/em><\/p>\n

2- Would it be possible to intercept conversations and messages on the WhatsApp application even if the end-to-end encryption is active?<\/em><\/p>\n

3- Would it be possible to deactivate the end-to-end encryption of one or more specific users so that, in this manner, a legitimate judicial interception can be performed?<\/em><\/p>\n

4- Having in mind that the usage of the WhatsApp application is not limited only to one platform (cellphones\/smartphones), but it allows access and utilization also through other means such as computers (in WhatsApp\u2019s case, using WhatsApp Web\/Desktop), even if the end-to-end encryption is active, would it be possible to \u201cmirror\u201d the conversations on the application to other cellphone\/smartphone or computer, allowing a judicial order of interception to be implemented against a specific user?\u201d<\/em><\/p><\/blockquote>\n

The content of these questions helps to explain why the public hearing switched its tone to discussing encryption, and not blockages. Even though the issues raised by the cases concern the constitutionality of judicial orders of blocking an internet application and the legal grounds of these measures are under the MCI, the court indirectly stumbles upon issues connected to encryption: it\u2019s a basic legal principle that no one is obliged to the impossible (ad impossibilita nemo tenetur<\/em>); if WhatsApp is not capable of making these interceptions, no judge could demand this, let alone block accesses to the application for not doing something that was impossible for it to do. Thus, it is comprehensible that the court sought to hear tech experts.<\/p>\n

Of the 24 experts consulted in the hearing, at least 9 were experts in the computer science, engineering and\/or information security areas: the university professors Anderson Nascimento<\/a> (University of Washington-Tacoma), Diego Aranha<\/a> (Unicamp) and Marcos Simpl\u00edcio<\/a> (Poli-USP), representatives of the Federation of the Associations of the Information Technology Companies (Fabio Maia<\/a>), of the Center for Research and Development in Telecommunications (Alexandre Braga<\/a>), of the Laboratory of Research in Private Law and Internet of the University of Bras\u00edlia (Marcelo Gomes<\/a>), of the Center of Open Software Competence of the Institute of Mathematics and Statistic of USP (Nelson Lago<\/a>), of the Internet Steering Committee (Demi Getschko<\/a>), and also Brian Acton<\/a> co-founder and vice-president of WhatsApp Inc.<\/p>\n

In presentations that complemented each other, these experts were unanimous in their message to the court: as it is built today, it is not possible for WhatsApp to intercept the content of messages; for it to be able to perform wiretaps, a modification on the app\u2019s encryption protocol would have to be done.<\/p>\n

This would be a bad idea for at least four reasons, according to the experts: the imposition of this change to WhatsApp<\/p>\n