STF returns to judge blocking of WhatsApp; Moraes has already suspended Telegram

The Federal Supreme Court will judge, between April 19 and 26, a 2016 preliminary decision that overturned the judicial blockade of WhatsApp throughout the national territory. At the time, judges in Sergipe and Rio de Janeiro had ordered the suspension of the application in Brazil after the company stopped providing the courts with private conversations of criminals investigated for drug trafficking. The blockade was imposed due to non-compliance with the court decision.

The PPS party (currently Cidadania) approached the Court and, during the recess, Lewandowski granted an injunction to restore the functioning of the messaging service. Now, ministers will vote on whether to maintain or overturn this decision. The tendency is for it to be endorsed, in order to keep WhatsApp in operation, but the ministers’ votes may indicate different understandings about the possibility of the Court suspending or not messaging applications or even other online platforms that fail to comply with court decisions.

This is the reason why Minister Alexandre de Moraes suspended, in 2022, the operation of Telegram throughout the country, for two days. Last week, the possibility was considered that the minister would block the social network X for the same reason.

In the action on WhatsApp, from 2016, the rapporteur, Edson Fachin, when voting on the merits of the case in 2020, defended the prohibition of any judge or member of the Judiciary from blocking the application, nationwide, in case of failure to provide private messages – although the Court may break the confidentiality of these communications. WhatsApp does not have access to them, since they are “end-to-end” encrypted, that is, encrypted in such a confidential way that only the interlocutors themselves can view them on their devices.

When analyzing the issue, Fachin considered that encryption is a technology that robustly guarantees the fundamental right to privacy of all users of the application. For the minister, it would not be proportionate to require WhatsApp to disable or reduce the effectiveness of this mechanism, leaving users vulnerable to invasions, to comply with court orders.

The general blocking of WhatsApp, added Fachin, could not even be carried out by the Courts, but only by the National Data Protection Authority (ANPD), a technical body linked to the Executive, if the application failed to securely protect user data.

“It is unconstitutional to prohibit people from using end-to-end encryption, as an order like this disproportionately impacts the most vulnerable people,” said Fachin in his vote. “Weakening encryption is weakening everyone’s right to a secure internet.”

At the time, when the trial began in the STF plenary, minister Rosa Weber, now retired and then rapporteur of a similar action, endorsed this position. Under analysis were provisions of the Marco Civil da Internet that allow the suspension of online services. But Rosa Weber stressed that this measure would only be possible in the event of a violation of the confidentiality of personal data, not due to non-compliance with decisions to obtain private conversations.

“What is punished is the violation of privacy and other rights of users outside the strict legal limits. There is nothing in Law No. 12,965/2014 that authorizes the conclusion that art. 12, in its III and IV, support orders to suspend the communication service offered by application providers in case of non-compliance with a court order to provide communications content”, stated the minister.

It was May 2020 and the trial was interrupted by a request for a review from Alexandre de Moraes, who wanted to analyze the issue further. Later, he ended up disagreeing with Fachin and Rosa Weber.

Using the same rule in the Marco Civil da Internet that, according to his colleagues, could not lead to the judicial suspension of WhatsApp or similar messaging services, he blocked Telegram, in March 2022, for failing to comply with an order he had given to the platform.

It was not to obtain private conversations, as in the decisions suspended by Lewandowski, but to block the channels of Allan dos Santos, owner of the website Free Tuesday and one of Moraes’ biggest targets in the “fake news”. Telegram had failed to comply with several orders to remove channels from the platform.

“The disrespect for Brazilian legislation and the repeated non-compliance with numerous judicial decisions by Telegram, – a company that operates in Brazilian territory, without indicating its representative – including those issued by the Federal Supreme Court – is a circumstance completely incompatible with the current constitutional order, in addition to contradicting expressly legal provision (art. 10, § 1º, of Law 12,965/14)”, wrote Moraes in the decision, citing the rule of the Marco Civil da Internet that allows blocking.

Discussion about the suspension of online services

The trial will begin on April 19th and will be held in the virtual plenary, in which ministers present written votes for a week, and do not go into the merits of the action – the prevalence of the right to communication for all users of a messaging application about the need to comply with court orders to investigate a specific criminal group. The object is just Lewandowski’s 2016 injunction, with a more superficial analysis of the topic.

In any case, Moraes will be able to present a written vote presenting his vision of the issue, which differs from Fachin and Rosa Weber, opening the possibility that the Court could use the Marco Civil da Internet to suspend messaging applications – or even other online services , such as social networks – that do not collaborate with criminal investigations.

In May last year, fearing this risk, WhatsApp sent a statement to the STF reinforcing that, despite not being able to open private messages from its users, it collaborates in other ways with Justice. “The encryption adopted by WhatsApp has not prevented investigations. On the contrary, WhatsApp provides data that contributes greatly to investigative authorities, including group information, contacts, profile photo, IP addresses/records, and information about who speaks or messages to whom and when. So much so that there has been no news of new blocking orders or the imposition of other sanctions against WhatsApp for a long time,” stated the platform’s lawyers in Brazil.

At the time, Moraes was once again on a collision course with Telegram, because of a message from the platform’s owner, Pavel Durov, criticizing Bill 2630/2020, known as PL das Fake News or Censorship PL, which would regulate social networks and messaging services, and because the company no longer responded to communications from the STF, because the lawyer who served the platform terminated the representation contract.

At the end of May 2023, the minister again threatened to suspend the application across the country if a new legal representative was not appointed in Brazil. Telegram responded to the request and was kept online.

The discussion about the suspension of online services will resurface in the STF shortly after the fear that Moraes would suspend the social network X, also due to an alleged failure to comply with the minister’s orders. The platform’s owner, Elon Musk, announced that he would reactivate profiles censored by Moraes. But, instead of blocking the social network in the country, the minister decided to investigate the businessman for alleged judicial disobedience – although the vetoed profiles remained unavailable in Brazil.

As shown by People’s Gazette, the suspension of X is not yet on the STF’s horizon – ministers consider that the measure would be excessive and disproportionate at this time. The discussion of the WhatsApp case, however, especially with Moraes’ vote, could reopen the legal loophole for this to happen, in case of non-compliance with court orders. A final and more consistent decision on this will come in the judgment on the merits, with no date set yet.