UPDATE: Brazil's Parliamentary Commission on Cybercrime approved the #CPICIBER report. The fight continues as the report is sent to the full lower house of Congress for committee assignment and debate. The updated site-blocking provision is now applicable to foreign sites which do not have representation (such as a branch or subsidiary) in Brazil and which are mainly dedicated to crimes punishable with at least two years of imprisonment. The provision, however, seeks to exclude instant messaging providers, but possibly not other kinds of messaging service such as e-mail hosts.
Just one day before a parliamentary commission is expected to recommend making such measures an explicit and permanent part of Brazilian law, Brazilians are getting a taste of what it feels like when ISPs can be ordered to block Internet sites and services.
In an echo of an earlier dispute from last December, a Brazilian judge from the state of Sergipe has ordered the five main Internet service providers in the country to block access to the WhatsApp messaging service for 72 hours starting today at 2:00 pm local time. ISPs that don't block WhatsApp may be liable to a fine of approximately US$142,000 per day. This decision affects millions of innocent Brazilians who rely on WhatsApp as a messaging service. It's disturbing to see the court issuing a decision that trample over users' freedom to communicate securely and the role of the Internet as a place for free expression.
The most recent blocking order was issued by Judge Marcel Montalvão, who was been demanding personal data from WhatsApp as part of a drug-related investigation in Brazil's northeastern state of Sergipe. In February, Judge Montalvão had ordered the arrest of a Brazilian Facebook vice-president as part of the same case. In December, Brazilian ISPs were also required to block Brazilians' access to WhatsApp in an unrelated case from São Paulo, an order that was quickly overturned on appeal.
A spokeperson for WhatsApp criticized the present order to Techcrunch:
"After cooperating to the full extent of our ability with the local courts, we are disappointed a judge in Sergipe decided yet again to order the block of WhatsApp in Brazil. This decision punishes more than 100 million Brazilians who rely on our service to communicate, run their businesses, and more, in order to force us to turn over information we repeatedly said we don't have."
Ordinary Brazilian users are angry about these attempts to coerce the company (which claims that it doesn't possess the information sought and that the judges aren't following the proper legal procedure) by cutting off everyone's access to its services. It's not at all clear that Brazilian law allows this kind of order at all, not least because of the Marco Civil law's protections for network neutrality and its associated protections against holding ISPs responsible for the information they carry.
But amazingly, two members of the parliamentary commission of inquiry (CPI) on cybercrimes have explicitly gotten behind normalizing disproportionate site-blocking orders and giving them the force of law in Brazil. In a new note issued on Saturday, commission members Sandro Alex and Rafael Motta proposed fresh legislative text explicitly authorizing orders to make ISPs block Brazilians' access to foreign web sites accused of allowing content that violates Brazilian law. The CPI is likely to vote on this recommendation, along with the rest of its report, on Tuesday. We've complained repeatedly that earlier versions of the report seemed to suggest that it was normal here in the U.S. for courts to order ISPs to block access to Internet sites—a suggestion we found bizarre considering the intensity of the debate over the failed legislative proposal SOPA, which would have created a mechanism for doing this.
The most recent proposal has backed down slightly on its characterization of U.S. law but still emphasizes that ISPs are allowed to block information voluntarily in some circumstances. So let's be very clear: the attempt to shift this norm to make site-blocking mandatory here caused a major nationwide political controversy, and that attempt was defeated. The United States is an example of a jurisdiction that does not have the kind of site-blocking orders that the report proposes to create. It's still seriously misleading to suggest that the U.S. Internet community would be OK with such orders or that they are more or less permitted by law here. Judges and lawmakers around the world continue to reach for censorship and mandatory blocking to enforce local law on a global Internet. It's a clumsy, disproportionate response that sacrifices the rights of millions. Get involve in the fight. Say no to the #CPICIBER report: