VPN ban, by Moraes, would equate Brazil to countries under dictatorships

Summary of this report:

• In the decision that censored Telegram, STF Minister Alexandre de Moraes threatened to ban internet access via VPN if the application was blocked in Brazil. The fine for non-compliance would be BRL 100,000 per hour.
• There is no law in Brazil that prohibits the use of VPN (Virtual Private Network).
• For jurists heard by the report, Moraes’ decision is abusive, dangerous for fundamental freedoms and brings legal uncertainty to companies operating in the country.
• The use of VPN is recurrent in countries under authoritarian regimes to circumvent state censorship.

The decision of Minister Alexandre de Moraes, of the Federal Supreme Court (STF), to censor a Telegram message sent to its Brazilian users with criticism of the bill to regulate social networks called “PL das Fake News” attracted diverse criticism from the community legal. First, for silencing legitimate discourse, and then for not even pointing out which legal provisions had been violated by the company.

On his own initiative, that is, without being provoked by the Public Ministry, Moraes ordered the app to remove the statement and send another message, written by the minister himself, saying that the previous one contained “illicit misinformation”. The minister is openly in favor of regulating social networks, the subject of the bill in question, and he himself handed over to the mayor, Arthur Lira (PP-AL), a series of proposals to be incorporated into the text.

However, another determination by Moraes, present in the same decision, caught the attention of jurists: the minister threatened to prohibit the use of the so-called VPN (Virtual Private Networkor virtual private network), a mechanism used to increase security in the digital environment, which is also used in countries under authoritarian regimes to circumvent state censorship.

One of the consequences, if the company did not comply with the minister’s order, would be the blocking of Telegram across the country. According to Moraes’ decision, a fine of BRL 100,000 per hour would be applied to any user who resorted to a VPN service to try to circumvent the restriction on the use of the application.

The issue is that there is no law in Brazil that prohibits the use of VPN to access the internet. “It is not prohibited, so much so that the minister did not base the decision on which law would be violated. He interpreted it in such a way as to insert the VPN issue into a form of anonymity that the Constitution would prohibit. But this extensive interpretation is very dangerous, especially since he did not mention how he came to the conclusion that it would be illegal”, explains Ana Paula Canto de Lima, a lawyer specialized in Digital Law and president of the OAB-PE Data Protection Commission.

“Taking this debate to the side of authoritarianism is a dangerous path. In China, VPN is illegal. The person who is discovered using this service will have problems, because it is a dictatorial government. So it worries the path that decisions like this can take”, he continues.

Order of Moraes is arbitrary and creates legal uncertainty, say experts

If Telegram had not deleted its statement and broadcast the message written by Moraes, leading to the blocking of the application in the country, the measure would interfere in the lives of millions of Brazilian users and companies. According to the Panorama Mobile Time/Opinion Box survey released last year, 65% of smartphones in Brazil have Telegram installed for personal and professional use.

Another point seen as worrying by jurists is the disproportionate amount of the fine. It would be BRL 100,000 per hour for both individuals and companies that use the VPN, with the amount being the same regardless of the size of the company. In practice, small businesses that usually use the tool to communicate with customers and resort to the VPN to maintain their activities would be penalized with very heavy fines for using a tool that is not prohibited in the country.

“Worrying about a decision like this is above any political issue. What is at stake is freedom of expression, democracy, the democratic rule of law and, above all, legal certainty. What legal security do companies have to continue operating in Brazil if at any time an arbitrary and unfounded decision could come, and the company is obliged to accept it?”, says Ana Paula Canto.

André Marsiglia, a constitutionalist lawyer specializing in freedom of expression and the press and a member of the OAB-SP Press Freedom Commission, points out that Moraes’ order is unfeasible in practice, and has political connotations with the aim of instilling fear in the population. .

“This type of measurement, the use of VPN, is unfeasible from the point of view of technological operation, the possibility of investigating to arrive at something. So the idea here is basically to send a message, a warning, scare. And that is not the function of the Judiciary”, says Marsiglia.

The jurist also points out the abusive nature of the measure by threatening punishment to people who are not even part of the process. “The fact that the minister seeks to punish someone who is not included in the process and for a hypothetical attitude with an absurd fine goes beyond censorship. It is an order that thinks about punishment before investigating the person who committed the eventual offense – a total inversion of values”, he declares.

In countries dominated by dictatorships, VPN use is rejected by authoritarian leaders

The use of private networks is related to increased digital security, as VPN services encrypt internet traffic, preventing hackers and cybercriminals from decrypting this data to commit crimes. At the same time, the tool uses connections to servers in other countries, so that the user’s location is not identified. Thus, it becomes possible, for example, to circumvent access restrictions imposed by governments on certain sites or contents.

This was the means used by Brazilians to follow a series of profiles on social networks that were censored by order of Alexandre de Moraes in recent years. Even parliamentarians with an active mandate had their profiles silenced for a period of time, while others, such as businessman Luciano Hang, who had millions of followers, have been blocked for years even without a judicial conviction.

The resource to circumvent censorship is a very common reality in countries that live under authoritarian regimes, where it is common to control internet providers, monitor user navigation, restrict sites with content critical of the government and, in extreme cases, , the complete cut off of access, as is the case in North Korea.

In the case of China, whose power has been exercised for decades by the Chinese Communist Party, although the internet restriction is not total, the technological censorship imposed by the government is so well known that it is informally dubbed the “Great Firewall of China”. There, access to various websites and apps – such as Google, Facebook, Instagram and YouTube – is prohibited. And it’s not just Chinese citizens who tend to use VPNs to access the internet: Brazilian reporters who traveled to the country to cover Lula’s recent trip to China, in April this year, needed to use the service to be able to carry out their work.

Such as People’s Gazette showed, a possible blocking of Telegram would make Brazil the only democracy in the world to prohibit the use of the application, placing the country in a group that today has five nations: North Korea, China, Cuba, Iran and Bahrain.