The block is the latest in a string of internet shutdowns in 2015 and shows worrying backsliding in Brazil on digital rights
Yesterday a judge in Brazil ordered the blocking of WhatsApp for 48 hours, for WhatsApp’s failure to comply with a court order. The blocking of the popular social media and communications service instantly prevented millions of Brazilians from using WhatsApp. Ninety-three percent of Brazilians use WhatsApp, with Facebook in second place at 79 percent, according to a recent survey of 2,000 internet users in the country.
A higher court overturned the block with a temporary injunction in mid-afternoon in Brazil on Thursday. At the time of this writing, services are gradually being restored. The case will be argued in February 2016, and until that time WhatsApp will remain available.
However, the block represents the latest in a string of worrying setbacks for digital rights in the country.
The blocking started on Thursday at 12:01 am and was set to continue until 11:59 pm on Friday. Since WhatsApp had failed to comply with a July court order requesting message logs and information about a user for a pending criminal investigation, a judge in a São Paulo court ordered a list of fixed and mobile services to block the service. The punishment for failure to comply with the order is a fine or criminal charges against company representatives that could result in jail time.
Internet shutdowns, or kill switches, sometimes called “network disconnections,” occur when telecommunications companies massively block or throttle internet applications, text messaging, or phone traffic. These shutdowns are a horribly blunt instrument: they affect dissidents and rabble-rousers, ambulance drivers, and worried parents alike, plunging whole societies into darkness. Rather than increasing public safety, they cut off access to vital information and send more people into the streets. They also threaten the digital economy and innovation.
There have been nearly 20 recorded internet shutdowns worldwide in 2015 alone, including today’s shutdown of WhatsApp in Brazil.
Backsliding for digital rights in Brazil
Since the underlying criminal investigation in Brazil is still pending, there are few public facts about the case. We do not know what the judge requested in the initial order to which WhatsApp did not respond.
In February, a judge in the Brazilian state of Piauí tried to block WhatsApp nationwide for not collaborating with a police investigation, but after telcos appealed the measure was suspended by higher court judge.
Even though it was temporarily overturned, the São 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 — provides penalties for companies that fail to abide by data protection provisions contained on the Marco Civil. Among the possible penalties, judges can apply warnings, temporarily suspend services, or even prohibit operation of the service on the country. Judges can impose these penalties individually or jointly. However, with respect to WhatsApp, the presiding judge improperly cited article 12 when ordering the block even though the underlying case was not related to data protection, but to a failure to comply with a request for user information. We believe that this interpretation of article 12 is overbroad and disproportionate, violating a cornerstone of international law, and similar decisions would have 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.
Pressure on tech companies in Brazil is set to increase even more. In February 2015, lawmakers introduced a dangerous bill in the Câmara dos Deputados –Brazil’s house of representatives — that aims to reform key provisions in the Marco Civil to the detriment of the rights to privacy and freedom of expression. Those supporting the bill say that it’s a necessary tool to defend the honor of Brazilians online. But authorities can request information with fewer safeguards.
However, the United Nations has condemned the use of internet shutdowns. Experts at the U.N. issued an historic statement declaring that internet “kill switches” can never be justified under international human rights law, even in times of conflict. This statement means that governments around the world can no longer justify ordering internet shutdowns to quell protests or silence dissidents, whether it’s in Brazil or Burundi. Europe’s highest human rights court, the European Court of Human Rights, added its voice to the chorus this month in a decision by finding that Turkey violated internet users’ right to freedom of expression when it banned YouTube for over two years between 2008 and 2010.
Facebook, WhatsApp’s parent company, has not been transparent enough about WhatsApp’s practices and policies related to user data. For example, the lack of clarity on WhatsApp’s human rights commitments and executive-level oversight sunk Facebook’s overall score in the corporate transparency project Ranking Digital Rights, which Access Now supports. They could do more.
We call on Brazilian authorities to:
- immediately restore the use of WhatsApp in Brazil
- cease using article 12 of the Marco Civil to disproportionately block internet services
- develop clear standards for the interpretation and implementation of article 12 of the Marco Civil to protect free expression and human rights
- vote against the Espião bill in its entirety and vote against related legislation that would endanger the rights of internet users in Brazil
We also call on telecommunications companies, telecom industry associations, and internet application providers to meet their responsibilities to respect human rights and remedy violations, and to:
- jointly push back against blanket shutdown requests;
- publish policy commitments against allowing governments to shutdown or throttle networks;
- convene with civil society to discuss the threats posed by shutdowns; and
- transparently disclose any orders to shutdown or throttle networks, as soon as legally possible.
For more information, contact Javier Pallero at javier [at] accessnow.org or Deji Olukotun deji [at] accessnow.org.
UPDATE 12/18/2015: This post was updated to clarify that the judge requested message logs in addition to information from WhatsApp. The post also clarifies the scope of Article 12 of the Marco Civil.