[lacnog] CGI.br clarification note regarding blocking of Whatsapp in Brazil

Mar Dic 22 00:16:58 BRST 2015

Hi Carlos and Friends,
About this issue and after the heat of the facts that I analyze what happened from four different angles.

1) The errors of the judge were at least two, maybe three.
Under Article 12 of the Marco Civil of the Internet Brazilian, it is perfectly legal for justice enact the temporary suspension of a set of activities listed in Article 11, which are the "collection, storage, custody and treatment records, personal or communications connection providers and Internet applications. " In determining blocking access to WhatsApp IP numbers, the judge pushed the boundaries of Marco Civil, imposing a kind of seal that is not prescribed by law. But more than that, the judge determined that such a blockage was made by the telecom operators. This means that instead of referring directly to WhatsApp, the judge imposed a third party to block access to messaging service, creating a dangerous precedent. And perhaps the wrong judge has also proportionally, to block access of all Brazilians because of an offense committed by just one group of citizens.
2) The legality of the temporary suspension.
If it had been limited to determining Articles 11 and 12 of the Marco Civil of the Internet Brazilian, the judge's decision would be absolutely legal. Scare some ultra-liberal readings that identify as the work of a contemporary Leviathan any state action, but are silent in criticizing the conduct of large private companies. We may read that the temporary suspension of one, among many, messaging service would hurt the constitutional right of access to information. In fact, the Marco Civil correctly predicted the possibility that the state needs to intervene and impose limits on private transaction, as in any economic activity and the Internet should not be an exception.
3) The risks of inefficiency.
Even if you have taken a wrong attitude, the decision of the judge part of a fully justified motivation. After all, even after being summoned, warned and fined (as defined by the Marco Civil of the Internet Brazilian), Facebook (integral controller WhatsApp) followed violating Brazilian law and did not provide important information for an investigation against organized crime. And the worst thing is to think that if it had acted correctly, the determination of suspended activities listed in Article 11 of the Marco Civil of the Internet Brazilian would also be innocuous. This is because, most likely, these activities are not performed by WhatsApp in Brazil.
4) The boundaries of nation states.
This seems to be the most dramatic issue within such an event. And two things became absolutely evident… First, the heavy dependence of much of the population to a single service messaging that today serves as a pseudo-monopoly. Secondly, this service acts from another country and can afford the pleasure of simply disregard the law and the decision of a judge, without suffering any consequence. At the end, Facebook did not accept the court's decision to provide the information of criminals, he published a text criticizing Brazil and was all for that. It is this kind of nonsense that exposes to ridicule the rule of law and end up inviting the emergence of authoritarian alternatives. On the other hand, it exposes the complete inequality means face to countries like the United States that determine that Facebook, Google and others do all kinds of violation of privacy. That is, in this context, Brazil is a country of second level, unable to enforce its law.And transnational solutions do not leave us a bit excited. The Internet Governance Forum (IGF), an event held by the UN ten years ago, could never pass a single recommendation.. 
Ie the action of many of the States is safe and transnational solutions are blocked. It is an invitation to authoritarian interventions or just misguided, as this judge.
Best,Rogerio Mariano

    Em Segunda-feira, 21 de Dezembro de 2015 19:42, Carlos Afonso <ca en cafonso.ca> escreveu:

 CLARIFICATION NOTE in virtue of the decision issued by the Honorable
Judge of the 1st Lower Criminal Court of São Bernardo do Campo, ordering
the suspension of the Internet application “Whatsapp” in the national
territory of Brazil.

17-December-2015

The Brazilian Internet Steering Committee (CGI.br), after taking notice
of some excerpts of the decision issued by the Honorable Judge of the
1st Lower Criminal court of São Bernardo do Campo, ordering fixed and
mobile Internet Service Providers in Brazil to suspend for 48 hours the
access to the domains whatsapp.net and whatsapp.com and the inherent
subdomains by blocking the traffic of any content as well as all IP
addresses related to such domains and subdomains, including by adopting
measures aimed at clearing cache memories related to the latter, among
other measures.

HEREBY

clarifies that Article 12 of Law 12.965/2014 (or simply “Marco Civil”)
only authorizes the temporary suspension of the activities expressly and
exhaustively listed in the caput of article 11 of Marco Civil, i.e., the
collection, storage, retention and treatment of logs, personal data or
communications by Internet access/connection and application providers.
Accordingly, article 12 of Marco Civil cannot be construed as something
that entails the full and unrestricted suspension of all activities of
Internet services and applications providers that operate in Brazil.

Moreover, the Steering Committee takes up this opportunity to reiterate
some of the terms of a clarification note previously adopted by its
board members on March 3, 2015, by which they evaluated a similar
decision adopted by a lower court of the state of Piauí, specially in
relation to the following aspects:

1) Article 12 of Law 12.965/2014 comprises a group of sanctions, namely
warnings, fines, the temporary suspension of activities involving the
acts specified in Article 11 as well as the prohibition of exercising
those same activities. Those sanctions shall be applied gradually and
must be strictly aimed at entities that violate the rules related to the
protection of logs, personal data and private communications.

2) Any action taken against illicit activities on the network must be
aimed at those directly responsible for such activities and not at the
means of access and transport, always upholding the fundamental
principles of freedom, privacy and the respect for human rights
(Resolution CGI.br/Res/2009/03/P);

3) Item VI under Article 3 of Marco Civil restricts the liability of
Internet stakeholders to the specific extent of the activities they
perform; and

4) Article 18 of the same Law states that “the Internet connection
provider shall not be subject to civil liability for damages resulting
from content generated by third parties”.

The members of the board of CGI.br believe that Marco Civil does not
provide any legal ground for the unrestricted suspension of Internet
services and other activities and measures that adversely affect a
diffuse and indiscriminate group of Internet users in Brazil and in
neighboring countries that use the infrastructure and services provided
by Brazilian companies.

Therefore, CGI.br takes note of the efforts entailed by
telecommunications and network providers in the country to cope with the
court order, in full compliance with Brazilian Law, in spite of not
being parties to the respective action; and commends the Honorable
Justice Dr. Xavier de Souza, of the Court of Appeals of the State of São
Paulo, who issued a writ of mandamus to revoke the lower court's
decision, normalizing the operation of Whatsapp in Brazil. His action
realigned the jurisdictional process to the general principle of
non-liability of the network comprised in CGI.br's Decalogue of
Principles for the governance and use of the Internet, which provided
the normative basis for the principles, guarantees, rights and duties
enshrined in the Federal Law 12.965/2014.

-- 

Carlos A. Afonso
Instituto Nupef - https://nupef.org.br
CGI.br - http://cgi.br

GPG 0x9EE8F8E3
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