Brazil Suspended WhatsApp, Violating Net Neutrality and Common Sense

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Brazil Suspended WhatsApp, Violating Net Neutrality and Common Sense

The service wouldn't turn over subscriber information, so a Brazilian judge demanded it be shut down.

Wednesday evening, Brazilians were caught off guard with the news that WhatsApp would be suspended for 48 hours throughout the country. As if that wasn't bizarre enough, the media never really revealed the reason behind the service's interruption. Speculations and theories ensued. Some involved the monopoly by cellphone carriers; others regarded the current crisis in the Brazilian government and the apprehension of Eduardo Cunha's cell.

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While the country was thrown into hysteria upon news of the service's temporary suspension—it's worth noting that about 93 percent of the population uses zapzap (as most Brazilians call it)—the real reason behind its suspension was finally disclosed: The judicial decision was related to an investigation of a man arrested by São Paulo's Civil Police back in 2013, who was charged with robbery and murder, drug dealing, and was accused of having criminal ties to Primeiro Comando da Capital (PCC), one of Brazil's largest criminal groups.

Although the investigation is operating under a shroud of secrecy, it is know that the authorities responsible for it obtained a court order to access data and information of the man from WhatsApp.

"These decisions are going to keep happening"

And here's where it all goes to shit: The owners of WhatsApp basically didn't cooperate. As far as we know, the company ignored the court's orders. Since there was no aid whatsoever from the American company, its service was blocked as means of punishment, as determined by São Bernardo do Campo's 1st Criminal Court, in São Paulo's metropolitan area.

It's like telling the company "It's ok if you're not willing to cooperate, we're just gonna screw you over." Not a very smart move, but that's what went down. A judge told all phone companies to block access to WhatsApp, and a few minutes before midnight, the app just stopped.

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That only lasted 12 hours, however. Thursday afternoon, judge Xavier de Souza from São Paulo's 11th Chamber of the Court of Law determined that WhatsApp should be unblocked throughout the country. In a note sent to São Paulo's Court of Law he wrote that "it is not reasonable for millions of users to be affected due to the company's inertia." Phone companies quickly complied to the decision and so Brazil went back to being a peaceful, crisis-less country.

"Only people with access to the case, which is confidential, knows how many individuals are linked to the investigation"

Even though the block didn't last that long, it sure made some waves. Three hours after the communiqué, 500,000 Brazilians had already signed up for Telegram as an alternative to chat and many others had already installed VPNs to circumvent the suspension. The somewhat outlandish decision to ban WhatsApp was also was useful in showing us how our judicial system, just like that laid back great-aunt living by the beach of yours, doesn't really know jack about that internet thing.

According to Caio César Carvalho de Lima, lawyer and specialist in Digital Law at Opice Blum, Bruno, Abrusio e Vainzof Attorneys, the measure was clearly unnecessary.

"Only people with access to the case, which is confidential, knows how many individuals are linked to the investigation, a number that can rage from 3, 4, 200, it doesn't matter. That isn't nearly enough of an excuse to stop 100 million users from running the app. Proportionality wasn't taken into account," he told Motherboard. The lawyer also explained the sanction was laid out incorrectly, because it was up to internet providers and cellphone carriers to shut down access to the product.

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Besides being senseless, the decision violates the principles of internet use and consumer freedom to use data as they see fit. The Brazilian Civil Rights Framework for the Internet assures net neutrality. In practice, that means the data packages used by the internet should be treated in equally and providers cannot discriminate or regulate the content that an user wants to access through them. The stoppage didn't affect just Brazilians either, but also anyone who wanted to contact someone in Brazil through the app.

What's more impressive—and more terrible—about it is that bizarre cases like this will happen again and again in Brazil. Something very similar went down in Piauí earlier this year. The local justice wanted WhatsApp to breach the confidentiality of a handful of users as part of an investigation on pedophilia. The company didn't cooperate and a judge asked for the service to be blocked. The difference this time was that another judge revoked the decision prior to the service being actually suspended.

"These decisions are going to keep happening because what is requested on court can vary a lot. People are going to use this as an example," said Caio César.

Lucas Anjos, also a lawyer and member of the Group of International Studies in Intellectual Property, Internet and Innovation (GNet) told Motherboard that our judges simply don't understand technology. Most of them never actually took any classes regarding law and the internet, he said, despite several groups offering courses on the subject.

Pedro Vilela, also of GNet, said it's a generational issue: We'll only have a better management of said services in the country when everyone is more aware of how the internet works and actually affects people's lives.

"We believe that, as means to act reasonably and proportionally, first a warning should've been issued, then a fine, then a temporary suspension of the activities (just the collection and transmission of data, not the service as a whole, as determined by Brazilian Civil Rights Framework for the Internet)," said Lucas Anjos and Pedro Vilelas. "In a last effort the provider's activities in Brazil could be forbidden. It's a natural escalation of sanctions, to coerce the company to follow through a claim. We believed that these steps should be followed and evaluated in accordance to the gravity of the action that created WhatsApp's involvement with the case".

It's not clear why WhatsApp hasn't cooperated with the investigations, though it's possible the service couldn't retrieve data even if it tried: WhatsApp uses encryption, so it's possible the company couldn't decrypt what was being asked for.

This article originally appeared on Motherboard Brasil. Translated by Thiago "Índio" Silva.