US government sues uses SCA to request data held overseas by an American company. Court rules that US government under SCA has no jurisdiction to request data held overseas, even if by an American company.
In this case, WhatsApp does not operate in Brazil. They do not have a legal entity in Brazil. A Brazilian judge has exactly zero jurisdiction over WhatsApp.
You imply that Brazilian authority extends overseas, over the entire Internet.
Sure, it is in the judge's power to blackmail the company by ordering other companies to block it. But the judge still has zero authority over WhatsApp.
Edit:
The correct way for the judge to proceed would be to use the Mutual Legal Assistance treaty between the US and Brazil to request the data through the US Government and judicial system: http://www.state.gov/documents/organization/106962.pdf
From Art. I, assistance shall include:
(f) executing requests for searches and seizures;
Which would be subject to US laws, therefore, probably wouldn't happen.
The first couple times that WhatsApp was blocked in Brazil, the reason was that they denied access to certain logs.
This time, they explicitly mention they want encryption to be turned off and demand WhatsApp to reply to Brazilian requests in Brazilian terms. The problem is that WhatsApp, as stated before, do not operate in Brazil as has exactly zero obligation to answer Brazilians court orders.
Now it's time for the country to discuss, as are many other places in the world, where does the right to investigate crimes by prying into someone or some groups communications begins and where does the right to privacy of the population ends.
The Supreme Court judge who suspended the block argued that it violated basic rights of the people, which is good, but already there is talk of a political project to establish what those in power all over the world want: access to communications and access to the ability to punish those who don't obey, the later in the form of an obligation for the companies involved to have an arm in Brazil.
That's not true. If the user receiving the message is not online how is the message supposed to be delivered? Obviously the server holds it until the user comes online. So yes, there is data.
The only data that needs to be stored by WhatsApp is `Sent` and not the message itself, which can be stored locally by the Messenger.
[Messenger] <--> [Sent Succesfully?] <--> Recipient
When the Recipient receives a message - they alert WhatsApp that the message has been received which can then alert the Messenger that the message has been sent. If it comes back with a failure, the Messenger will attempt to send the message again in `${Time}` until it sends. The message itself never has to hit WhatsApp's servers.
I'm not sure Whatsapp has everyone's sympathy here; not mine at least. If I live in democratic country X where the law says Y, then I want my government to uphold that law in my country. If company Z refuses this, banning company Z from the country as a last resort seems like the right course of action.
Now if the majority of said country's citizens does not like law Y because it causes trouble for company Z, then they have to make that known. That's democracy as far as I know.
I'm quite firmly on Brazil's side, though I can see Whatsapp's point as well.
As for democracy ~96% of Brazilians with access to a smartphone use WhatsApp as their primary method of communication. There was a fair bit of outrage in Brazil. Though I may personally be more aware of it as its the those with smart phones were the people I heard the most from.
Thank you, sir.
"Out of spite" is ridiculous indeed, but I sustain my guess that if a proper brazilian lawyer had addressed the case, no block would ever be ordered.
(I am having a No True Scotsman[1] kind of a reaction to this phrase, with a side serving of Kafka[2].)
Their lawyers answering the judge's court order are from this american firm: https://www.zwillgen.com/
That's not how the internet works.
That means that it is not universal or obvious that this kind of blocking would be practiced or accepted. (For example, if a Brazilian company ignored a subpoena from a U.S. court, there would not be a legal basis for the U.S. court to order ISPs to prevent Americans from accessing that company's services.)
Some portion of Brazilians think it is "obvious" that a government would never allow its citizens to access Internet services that allow or commit violations of local law, or are simply not subject to local jurisdiction at all. But it's not obvious at all.
blocking whatsapp because they are being uncooperative with Brazil's legal system is completely fair.
> They asked for access to data WhatsApp has no access to, and then blocked the service when they didn't get it.
Are they required to be able to provide such data when asked if they want to operate in brazil?
Did they respond to the request in a reasonable fashion?
No, WhatsApp is not subject to the judge's jurisdiction. They do not have to cooperate, respond in reasonable fashion or anything.
The power of law has limits.
The name "Facebook Brasil" makes me wonder: what's the relationship between Facebook (the USA company), Facebook Brasil, and Whatsapp? Does anyone here know the details?
Everybody seems to be assuming that "Facebook Brasil" and "Facebook (parent company of Whatsapp)" are the same, but is that really the case? And how does that affect the jurisdictional questions involved in these cases? The decision mentions a law that says that foreign companies that have one "agência, filial ou sucursal" in Brazil are considered as having domicile in Brazil, but would that affect a different subordinate of the same parent company? Does it depend on which kind of subordinate it is?
This is exactly the claim of Facebook Brasil legal team.
WhatsApp is a Delaware Corporation based in the USA, with no operations in Brazil.
Do you mean that they claim they are based ouside of Brazil? I guess from the context that that's what you meant, but unfortunately "based out of" means "based in." I know, crazy language we have.
Not mine. But Brazilian courts, with their over-arching powers, have even less sympathy; Brazilian bureaucracy, with their disregard for individual freedom, have even less sympathy; and lawmakers, with their disdain for those without as much command of the laws, the least of all my sympathy. That someone is not doing their every bidding - oh, I'm sorry, not treating them "the proper way" - is something that must be hard to muster. I guess their contempt made them blind to what makes sense and what doesn't.
Brazil doesn't get a free pass in something no one else in the civilized world is asking for.
And yes, it's also possible that it's just an arrogant law firm (always a possibility), but it's also possible that their counsel advised them specifically not to retain a Brazilian-speaking attorney, or sworn translator into Brazilian Portuguese (who typically would have some ties to the country).
Another possibility, frankly, after the last time ended up with one of their executives arrested for contempt of court, is that Facebook/WhatsApp may not have wanted to risk the freedom of some poor freelance translator in Brazil, who risked being hauled off to jail for having his name on the translation (required for legal translations in most countries).
I never had any sympathy for Watsapp, and still have none. But I can't have any for this judge either. Good thing the Supreme Court already overruled her.
But I hope that at least part of the conversation can be brought back to the issue of encryption in Brazil. This case is simultaneously also about whether encrypted communications are okay in Brazil, because the Brazilian government wants a company abroad to put backdoor features into their software. That means that no Brazilian may have secure communications without backdoors.
I cannot imagine that Brazilians trust their government anymore than Americans. I propose that any government will always be able to lift any privilege (aka right) in the legitimate or illegitimate pursuit of its interests, but that the citizen should not voluntarily forfeit their ability to secure themselves, especially with something as non-violent and social as communication security.
Also, even when a government is legitimately pursuing its interests in determining the criminality of a citizen, if Brazilian prosecution is anywhere near as hostile and adversarial as the US, then the Brazilian individual ought not voluntarily yield themselves to government investigation, even if they are innocent or righteous.
http://www.conjur.com.br/2016-jul-19/stf-derruba-decisao-jud...
And Facebook Brasil just claims is another company. But the counter court order that removed the block the other times was filled by Facebook Brasil.
So Facebook Brasil + Whatsapp are obviously on an arrogant position with very unprofessional response to the court orders. If a proper brazilian lawyer was hired to properly react to the court orders I doubt that any of the 3 blocks would ever have happened, moreso because they have strong technical and ethical reasons on their side. At a minimum there would be a long judicial dispute. Even the judge that overruled the other block stated that Whatsapp didn't act the proper way while dealing with the previous court order.
WhatsApp might have the HN crowd sympathy on this, but they brought these issues to themselves by being unprofessional on their response to brazilian justice.