Why Did Brazil Block WhatsApp?

When authorities in Brazil blocked WhatsApp for several hours on Thursday, some 100 million Brazilian users of the Facebook-owned messaging services lost access to a tool that has become absolutely indispensable for digital life in that country. Some 93 percent of Brazilians use WhatsApp, according to one estimate. Doctors use it to communicate with their patients. Businessmen use it to conduct transactions. People who are too poor to afford a cell phone have embraced its free services.

The service was blocked after WhatsApp refused to comply with a Brazilian judge’s request to produce data in a criminal trial. Under Brazil’s landmark Internet law, known as Marco Civil, judges are empowered to levy harsh punishments on companies that don’t comply with data requests, resulting in a 48-hour block that began Thursday.

An appeals court quickly overturned the ban as disproportionate — why, after all, punish a company’s users for the actions of the company itself? — but the service outage, which was imposed before the appeals court ruling, nonetheless sparked panicked reactions from Brazilian Internet users.

The exact circumstances around the WhatsApp block remain unclear. In recent years, apps such as WhatsApp have embraced strong encryption to maintain the privacy of their users, and in many cases are unable to provide law enforcement with a user’s messages, even when given a valid court order.

On the heels of terror attacks in Paris and California, U.S. security officials have argued that increased encryption has made it harder to disrupt plots, and allows criminal groups to communicate more freely. WhatsApp may have ignored the order simply because they were unable to decrypt messages sought by the court.

But that is far from certain. In a statement announcing its decision, the first criminal court of São Bernardo do Campo merely said “WhatsApp did not respond to a court order, dated 23 July, 2015. On 7 August, 2015, the company was notified again of being subject to fixed penalty in case of non-compliance.”

Facebook did not answer repeated questions about why WhatsApp did not comply with the court order.

Besides the matter of encryption, there is another, perhaps more plausible, explanation for why WhatsApp ignored the order. Multinational tech companies such as WhatsApp service customers all over the globe. But the servers they use to bounce their messages from one phone to another are often not located in the same country as the user. A Brazilian WhatsApp user in Rio de Janeiro messaging her friend in Brasilia might have her message sent from the Brazilian coastal city to a server in the United States and back down to the capital.

So when courts such as the one in São Bernardo do Campo request data belonging to suspects in a criminal trial, they are often asking for information sitting on servers in another country. Companies such as Facebook are loath to comply with such orders, because they believe opening data centers in one country to warrants from another country could have disastrous consequences for user privacy.

For example, if Facebook were to comply with a Brazilian legal order seeking information from a Palo Alto server, what would stop China, or another authoritarian country, from requesting data belonging to human rights activists that sits on the same server? 

Because the Brazilian case remains under seal, it’s unknown why WhatsApp ignored the order, but Facebook is certainly casting the issue as one of user privacy. “This is a sad day for Brazil,” Facebook Chief Executive Officer Mark Zuckerberg wrote on his Facebook page. “I am stunned that our efforts to protect people’s data would result in such an extreme decision by a single judge to punish every person in Brazil who uses WhatsApp.”

A statement from WhatsApp provided by Facebook spokesman Matt Steinfeld more strongly implied that the company didn’t provide the records because they were encrypted and inaccessible: “We’re disappointed that a judge would punish more than 100 million people across Brazil since we were unable to turn over information we didn’t have.”

Regardless of the exact reason for the app’s non-compliance, Thursday’s ban of WhatsApp speaks to Brazil’s roiling privacy politics in the wake of the Edward Snowden revelations. According to documents brought to light by the NSA whistleblower, American intelligence agencies infiltrated state oil company Petrobras and targeted the private communications of President Dilma Rousseff. Those allegations sparked outrage in Brazil, the cancellation of a state visit by Rousseff to the United States, and demands for an official apology.

Moreover, as a response to the Snowden revelations, Brazilian authorities considered inserting into the Marco Civil a proposal that would have required companies providing digital services in Brazil to store data for its users there inside the country’s borders, according to Ronaldo Lemos, the director of the Institute for Technology & Society of Rio de Janeiro. Civil liberties groups and the tech industry intensely opposed such a “data-localization” scheme, and it was dropped in favor of another, milder proposal that granted Brazilian courts jurisdiction over companies that provide digital services in Brazil.

That jurisdictional authority was used Thursday to ban WhatsApp, even as the appellate court used other provisions of the Marco Civil enshrining the digital liberties of Brazilian to overturn the ban.

YASUYOSHI CHIBA/AFP/Getty Images