Brazil’s Supreme Court to Decide on Constitutionality of WhatsApp Blocking

RIO DE JANEIRO, BRAZIL – The Federal Supreme Court (STF) schedule for next Wednesday, May 20th, includes the judgment of two cases involving the blocking of messaging apps in Brazil, such as WhatsApp and Telegram. The court may reach a final decision on whether this is allowed by law.

One of the lawsuits is ADPF 403 (Action for Non-compliance of Basic Principles ), reported by STF Justice Edson Fachin. The case was brought in 2016, shortly after a Sergipe judge ruled that operators Claro, Vivo, TIM and Oi should block WhatsApp nationwide for 72 hours. The ruling was suspended after 24 hours.

The reason for the blocking was based on the fact that WhatsApp failed to cooperate with an investigation into organized crime and drug trafficking. The App said it could not help because it does not store the messages exchanged by individuals and that the content is protected by end-to-end encryption.

At the time, Judge Marcel Montalvão said the Brazilian Civil Rights Framework for the Internet allowed the blocking of services for non-compliance with a court order, according to the articles that deal with the storage of connection and access records (11, 12, 13 and 15).

The ADI 5527 (Direct Unconstitutionality Action) challenges this understanding; it was brought before the STF in 2016, it is reported by Justice Rosa Weber and will also be judged next Wednesday.

WhatsApp and organizations request an adjournment

Over the years, the STF has summoned several specialists to help with the decision, such as the ITS (Institute of Technology and Society), the NIC.br (Center for Information and Coordination of Brazil), the IBIDEM (Beta Institute for Internet and Democracy) and the ASSEPRO (Federation of Associations of Brazilian Information Technology Companies).

The STF’s Chief Justice, José Antônio Dias Toffoli, ruled late last year that both cases should be judged on May 20th, 2020. The ASSEPRO and IBIDEM requested that the ADPF 403 deadline be adjourned so that the trial could be held in a face-to-face environment; the proceedings must be conducted over the internet due to the pandemic of the novel coronavirus, which causes COVID-19.

WhatsApp also requested an adjournment, arguing that the matter requires “careful examination in terms of constitutional analysis and decision, which would require appropriate attention, allowing sufficient time and access to appropriate means of interaction for a warranted hearing.”

However, Justice Fachin kept the date for the ADPF 403 and stated that “the case has been calling for a final solution by this Court for a long time.” In his opinion, the current restrictions “do not prevent effective attendance at the time of the trial, nor do they preclude debates among the Justices.”

Source: Tecnoblog

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