THE STF (Supreme Federal Court) planned to hear two cases this week on the legality of the required court order. Block messaging apps. Case analysis was postponed until next Wednesday (27). The Attorney General’s office has spoken out against blocking WhatsApp in Brazil.
ADPF 403 (Argument for Non-Compliance with Basic Precepts) was filed with the Supreme Court in 2016, after a judge in Sergipe identified a nationwide blocking of WhatsApp for 72 hours, as it do not cooperate with investigations of organized crime and drug trafficking. The company said it cannot forward the content of the messages because it does not have access, as the content is protected by end-to-end encryption.
Block WhatsApp violating freedom of communication
Augusto Aras, Attorney General of the Republic, said in the opinion of the STF that there are other ways to get WhatsApp to comply with the court order, including fines and other penalties that “imply less sacrifice for the fundamental rights of society”.
He understood that the incident involved a tension between fundamental rights: the right to public security on the one hand; on the other hand, freedom of communication. Aras recalls that WhatsApp has more than 2 billion users in more than 180 countries; in Brazil, there are more than 120 million. “When a judicial decision determined blocking this service, more than half of Brazil’s population was harmed,” he wrote.
As for the attorney general, the judicial decisions to suspend WhatsApp nationwide violated basic freedom of communication. The Constitution states that “the expression of thought is free, not anonymity”; and that “the expression of intellectual, artistic, scientific and media activity is free of charge, regardless of censorship or license”.
He recalled a decision last year made by the Turkish Constitutional Court, which saw blocking the Wikipedia website as a violation of freedom of speech. “Brazilian Constitutional Law must reach the same conclusion,” Aras wrote.
Block WhatsApp disproportionate
The Attorney General noted that in order to be able to limit fundamental rights, a judicial decision must at least meet the following requirements:
- Is it suitable? Yes, since it has a legitimate purpose under the Constitution (fundamental right to public security);
- is it necessary? No, as there are other ways to achieve the goal with similar intensity, but with little impact on freedom of communication (such as punishment and fines).
If that measure is not necessary, it does not respect the principle of proportionality and is not allowed.
Aras writes: “Brazilian law may legally require an internet application provider to store and provide private communications legally by court order. “However, this premise does not lead to the conclusion that, in the case of noncompliance, judicial decisions can suspend the application.”
Aras also clarified that, within the limits of the STF’s action, the Department of Public Affairs and the Justice Department cannot specify how companies should design their products and services to conform to Brazilian law.
For this reason, he believes it is impossible to go deeper into technical details: the STF’s action should not discuss whether end-to-end encryption is compatible with Brazilian law.
“It is not a question of assessing whether the implementation of a backdoor is a must or not or whether public agencies are necessarily using methods,” the prosecutor said. other to prevent, such as in-between technique (MITM) ”in general.
For him, the question was simpler: Can WhatsApp be blocked in Brazil for not complying with a court order regarding public security? PGR says no. We’ll know next week if the STF agrees to this, in case no further delays occur.