As you may have heard, earlier this week, a judge in Brazil ordered that WhatsApp, the insanely popular messaging app owned by Facebook should be blocked from all of Brazil for 48 hours, after it refused to reveal some details
on some criminals who had used the app. Another judge overturned the ruling
soon after, and the app started to reopen to people in Brazil. The GlobalVoices link above has the details about how this came to be:
Much information that could help answer this question is being withheld from the public. But it appears to be linked to a criminal investigation of a man accused of drug trafficking, armed robbery and association with Brazil's largest criminal organization PCC. This investigation is being conducted in camera, or in secret, so no further details have been released.
In July and August 2015, Brazilian judiciary officials ordered WhatsApp to release personal data of users who were being investigated by the Federal Police. But WhatsApp, which is owned by Facebook, refused to release the data, according to the São Paulo Court of Appeals press release.
On December 16, the Brazilian Prosecutor's Office responded by ordering telecommunications providers to block WhatsApp altogether, affecting what the company estimates to be 100 million users in Brazil.
This seems like a fairly extreme reaction -- harming millions of users (a recent survey found that 93% of internet users in Brazil use WhatsApp) -- just because the company won't reveal info on one user. This is especially concerning because just last year we were happy to see Brazil pass a ground-breaking
law, called the Marco Civil, to protect online rights (after years
of debate over it).
However, the judge who agreed to block WhatsApp, Sandra Regine Nostre Marques, actually used a provision of the Marco Civil to justify the block:
The blocking motion was authorized by judge Sandra Regina Nostre Marques, who based her decision on a provision of Marco Civil, Brazil's so-called “Bill of Rights” for the Internet. The law establishes rules on network neutrality, privacy, data retention and intermediary liability, among other issues, and was approved by President Dilma Rousseff in April 2014.
The Marco Civil also allows state authorities to place sanctions on foreign Internet companies that refuse to comply with Brazilian legislation. As noted in Article 12 of the law, authorities can impose warnings, fines and temporary suspension of a company's services or activities. These penalties can be implemented only with a judge's approval.
The online human rights organization Access Now condemned the order
and further argues that article 12 of the Marco Civil should be changed:
Even though it was temporarily overturned, the Sao Paulo court order is a troubling setback for Brazil since the country passed legislation known as the Marco Civil da Internet, a civil framework for the internet that gives legal status to a set of fundamental principles for digital rights for all Brazilians. One little-known clause in the Marco Civil — article 12 — permits penalties for companies that fail to respond to requests for data. Among the possible penalties, judges can apply warnings, temporary suspension of services, or even the prohibition to operate the service on the country. Judges can impose these penalties individually or jointly. We believe that article 12 is overbroad and disproportionate, violating a cornerstone of international law. The implementation of article 12 by the judiciary has drastic and unintended consequences that harm the ability to seek, receive, and impart information.
The decision by the higher court judge to issue a temporary injunction was based on the lack of proportionality between the wide scope block and the failure to comply with the July court order. But a temporary injunction does not serve as precedent for subsequent court cases under Brazilian law.
But, that may not happen as there's a lot of pressure in Brazil to go the other way
unfortunately, as Eduardo Cunha, a leading Brazilian politician, and opponent to the Marco Civil has been gaining power.
Cunha, a former telco lobbyist, was one of the biggest opponents of Marco Civil (particularly its net neutrality clause) before the legislation made its way to Dilma’s desk and into law.
But a year later, he controls a Congress dominated by evangelical extremists and military dictatorship apologists, and is authoring or advocating on behalf of a slate of proposed laws that would not only dismantle Marco Civil’s provisions for consumer privacy and freedom of expression, but would also effectively criminalize the use of social media.
PL 215/15, which opponents are nicknaming the Big Spy (“O Espião”), is a surveillance law that would require Brazilians to enter their tax ID, home address and phone number to access any website or app on the internet, and require companies like Facebook and Google to store that information for up to three years and provide access to police with a court order. An earlier draft said “competent authorities” could request the data without a court order.
Another part of the law, authored by Cunha, would allow politicians to censor social media practically at will.
So, uh, yeah. It's not looking good for the internet right now in Brazil, despite looking so promising just a year ago.