Why is WhatsApp blocked again?

WhatsApp has once again drawn the attention of the mainstream media due to yet another clash with Justice. By the end of 2015 the app came to be offline for a few hours due to a court order issued by a judge in São Paulo, due to its refusal to handle certain data deemed important for criminal investigations. In March, a judge from Sergipe determined the arrest of Facebook’s vice-president for Latin America, Diego Dzodan, due to the refusal by the company to handle over data from the app as cooperation in criminal investigation involving drug trafficking: the drug dealers used the app to coordinate their activities. Facebook Brasil allegedly did not have said data.
Now, in May, the same judge has repeated the feat of the São Paulo judge and ordered the blocking of the instant-messaging app all over Brazil. By that time, WhatsApp was actually offline from early to late morning. Today, May the 2nd, it has been offline since 2pm in accordance to a court order.
We have prepared some answers:
 
[dt_gap height=”10″ /]

Why is WhatsApp offline again?

As mentioned, there is are ongoing investigations in Sergipe involving drug trafficking. Implicated dealers supposedly have been using WhatsApp to exchange messages among each other and with possible clients. In order to obtain the content of these conversations as means of producing evidence, Sergipe’s Justice, therefore, requested Facebook Brasil to handle over the messages.
[dt_gap height=”10″ /]

Why request the data to Facebook Brasil?

The tech giant bought WhatsApp in 2014 as means of expanding and diversifying its activities. The company responsible for the messaging app, however has no office or even legal representation in Brazil and is therefore out of reach to Brazilian Justice. The Marco Civil da Internet, however, avoids situations like this by establishing that any other companies in the same business conglomerate may be held liable in place of that which has no representation in Brazilian territory.

[dt_gap height=”10″ /]

Is WhatsApp obliged to handle the  data over?

Yes, if it had them. The Marco Civil establishes, in articles 10, 11 and 12, that an application provider must only disclose connection logs, content and personal data under a court order. That is not the case, however, since requested data refer to content of conversations. Thanks to the encryption used by the app, which seeks to increase users’ privacy, only said users have access to that content.

[dt_gap height=”10″ /]

Why is Facebook Brasil refusing to handle the requested data?

Facebook Brasil claimed not to have the data. Not only because it is  a different company from WhatsApp Inc., which would have access to access logs (IP and time of access), but also due to technicall impossiblity and by a procedural mistake by the judge, who should’ve requested the data through the Brazil-US MLAT (Mutual Legal Assistance Treaty) mechanisms.
In fact, even the company itself may not have access to the content of the messages itself. It is known that WhatsApp began using end-to-end encryption system textsecure, in which only the end users may decrypt messages and then read their content.
Furthermore, WhatsApp Inc., as an american company, is forbidden by said international treaty to handle the data over in any other way, even to a foreign company part of the same economic group such as Facebook Brasil.
 

[dt_gap height=”10″ /]

Why block WhatsApp?

Not accepting the claims of technical impossibility by the company, the judge from Sergipe determinou daily fines of R$500.000 (Around US$145.000) and lately of R$ 1 million as means of coerce Facebook Brasil to comply with the order. Additionally, he requested the arrest of Vice-President Diego Dzodan (Which was rapidly overturned). The company kept refusing to handle the data over, still basing itself on the difference between Facebook Brasil and WhatsApp Inc., on the requirements established by the MLAT and on the technical impossibility. The Justice then determined the blocking as a new coercitive measure.

[dt_gap height=”10″ /]

What about the Marco Civil?

The solution for problems like this is not foreseen by the Marco Civil but, as mentioned before, by the renewal of International Cooperation Treaties since the company has no offices in Brazil. The Marco Civil has several principles that discourage measures that hold the network directly liable (And not those responsible for the illicit act) and which causes so much negative impact in such a wide array of users all over the country in the name of local investigations.
Furthermore, as mentioned, WhatsApp no longer stores in its servers the content of messages exchanged between its users.
 

[dt_gap height=”10″ /]

What do specialists say?

There is a certain degree of consensus on the fact that the measure was disproportionate and inappropriate: it was overturned shortly after every time it happened. Yet, it caused a lot of controversy, drawing attention to a series of gaps in Brazilian legislation that will cause situations like this to happen over and over again.
 
For instance, in March, Professor Carlos Affonso Pereira, from the Institute for Technology and Society, warned us about the obsolescence of international cooperation treaties between Brazil and the US, signed during the 90’s and not concerned with the Internet, and the consequences it could bring for cases involving transnational applications.
Besides that, we will always speak in favour of better capacitation of judges for issues involving new technologies. The WhatsApp blockings impact millions of users negatively. Blocking mechanisms requested to telecommunication operators eventually end up affecting users in other countries. The measure, purely punitive, contributes nothing to the running investigations, and harms legitimate users in favor of a show of muscle from regional instances of the Judiciary and great tech companies. If they can’t understand the basic principles of the Internet and how it works and affects the lives of people, they will continue employing measures like this.