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Let's look at a similar case in the US: http://arstechnica.com/tech-policy/2016/07/microsoft-wins-co...

US government sues uses SCA to request data held overseas by an American company. Court rules that US government under SCA has no jurisdiction to request data held overseas, even if by an American company.

In this case, WhatsApp does not operate in Brazil. They do not have a legal entity in Brazil. A Brazilian judge has exactly zero jurisdiction over WhatsApp.

You imply that Brazilian authority extends overseas, over the entire Internet.

Sure, it is in the judge's power to blackmail the company by ordering other companies to block it. But the judge still has zero authority over WhatsApp.

Edit:

The correct way for the judge to proceed would be to use the Mutual Legal Assistance treaty between the US and Brazil to request the data through the US Government and judicial system: http://www.state.gov/documents/organization/106962.pdf

From Art. I, assistance shall include:

(f) executing requests for searches and seizures;

Which would be subject to US laws, therefore, probably wouldn't happen.

And even if it did happen, the data would probably still be encrypted.

There is no data. WhatsApp just passes the encrypted communication from your phone to another phone and that's it. It doesn't hold it.

The first couple times that WhatsApp was blocked in Brazil, the reason was that they denied access to certain logs.

This time, they explicitly mention they want encryption to be turned off and demand WhatsApp to reply to Brazilian requests in Brazilian terms. The problem is that WhatsApp, as stated before, do not operate in Brazil as has exactly zero obligation to answer Brazilians court orders.

Now it's time for the country to discuss, as are many other places in the world, where does the right to investigate crimes by prying into someone or some groups communications begins and where does the right to privacy of the population ends.

The Supreme Court judge who suspended the block argued that it violated basic rights of the people, which is good, but already there is talk of a political project to establish what those in power all over the world want: access to communications and access to the ability to punish those who don't obey, the later in the form of an obligation for the companies involved to have an arm in Brazil.

"There is no data. WhatsApp just passes the encrypted communication from your phone to another phone and that's it. It doesn't hold it."

That's not true. If the user receiving the message is not online how is the message supposed to be delivered? Obviously the server holds it until the user comes online. So yes, there is data.

No comment about how secure the below is, but it seems trivial to not need data on the message itself.

The only data that needs to be stored by WhatsApp is `Sent` and not the message itself, which can be stored locally by the Messenger.

[Messenger] <--> [Sent Succesfully?] <--> Recipient

When the Recipient receives a message - they alert WhatsApp that the message has been received which can then alert the Messenger that the message has been sent. If it comes back with a failure, the Messenger will attempt to send the message again in `${Time}` until it sends. The message itself never has to hit WhatsApp's servers.

> WhatsApp might have the HN crowd sympathy on this

I'm not sure Whatsapp has everyone's sympathy here; not mine at least. If I live in democratic country X where the law says Y, then I want my government to uphold that law in my country. If company Z refuses this, banning company Z from the country as a last resort seems like the right course of action.

Now if the majority of said country's citizens does not like law Y because it causes trouble for company Z, then they have to make that known. That's democracy as far as I know.

I'm quite firmly on Brazil's side, though I can see Whatsapp's point as well.

I agree, but this judge hasn't done this. And every time this Judge has acted its been overturned by a higher court. They've arrested an foreign citizen, seized funds for a separate company (albeit a subsidiary of the parent company), and misused another law to try and block access of it. All trying to get access to something Whatapp shouldn't have, and would hurt its global value if it implemented.

As for democracy ~96% of Brazilians with access to a smartphone use WhatsApp as their primary method of communication. There was a fair bit of outrage in Brazil. Though I may personally be more aware of it as its the those with smart phones were the people I heard the most from.

Actually, not outrage but fun and memes

> I'm quite firmly on Brazil's side, though I can see Whatsapp's point as well.

Thank you, sir.

This is ridiculous. If that was the case the responsible parties should be charged with contempt. Blocking the service "out of spite" has no legal grounds. Furthermore, no judge claimed what you claimed as the reason. They asked for access to data WhatsApp has no access to, and then blocked the service when they didn't get it.

Yes, a judge claimed that reason. Here is the last block court order (in portuguese): http://jota.uol.com.br/justica-rj-determina-novo-bloqueio-wh...

"Out of spite" is ridiculous indeed, but I sustain my guess that if a proper brazilian lawyer had addressed the case, no block would ever be ordered.

What is a "proper brazilian lawyer", particularly compared to the lawyers involved so far?

(I am having a No True Scotsman[1] kind of a reaction to this phrase, with a side serving of Kafka[2].)

[1] https://en.wikipedia.org/wiki/No_true_Scotsman

[2] https://en.wikipedia.org/wiki/The_Trial

Any lawyer that has a license to work as a lawyer in Brazil, with brazilian justice system.

Their lawyers answering the judge's court order are from this american firm: https://www.zwillgen.com/

WhatsApp is not subject to the Brazilian justice system, it does not have to answer to Brazilian law.

And that tends to make Brazilian judges quite angry and thus they do the only thing they can do. Which happens to be blocking WhatsApp (the only real weapon that works against WhatsApp they have)

Sure, which is clearly far from legal. No wonder it is quickly overturned every single time, like now, lasted what, 12 hours?

Five hours this time.

Then Brazil doesn't have to allow them to operate in their country.

They don't operate in Brazil, just like other millions of websites. Do you think every single website that wants to serve content to someone in Brasil should have a subsidiary in the country?

That's not how the internet works.

Having written a letter to the Brazilian Congress about (almost) this very issue (in connection with the CPI-Cibercrimes inquiry), I think some Brazilians may be surprised to know that the U.S. does not require ISPs to block connectivity to third-party foreign Internet sites that facilitate violations of U.S. laws, directly violate U.S. laws, or ignore U.S. court orders, as long as the ISPs themselves have no relationship with the sites. In fact, a proposal to begin doing so in copyright cases, known as SOPA/PIPA, was extraordinarily controversial in the U.S. and was effectively defeated. The U.S. legal system generally appears to accept that ISP blocking of third-party connectivity is simply not an available remedy, even in "clear" cases of legal violations.

That means that it is not universal or obvious that this kind of blocking would be practiced or accepted. (For example, if a Brazilian company ignored a subpoena from a U.S. court, there would not be a legal basis for the U.S. court to order ISPs to prevent Americans from accessing that company's services.)

Some portion of Brazilians think it is "obvious" that a government would never allow its citizens to access Internet services that allow or commit violations of local law, or are simply not subject to local jurisdiction at all. But it's not obvious at all.

Probably means a local bar accredited lawyer.

But surely in order to engage a Brazilian lawyer they would need some presence in the country - which would make them subject to the countries laws.

> Blocking the service "out of spite" has no legal grounds.

blocking whatsapp because they are being uncooperative with Brazil's legal system is completely fair.

> They asked for access to data WhatsApp has no access to, and then blocked the service when they didn't get it.

Are they required to be able to provide such data when asked if they want to operate in brazil?

Did they respond to the request in a reasonable fashion?

They arrasted an ex-president and jailed a lot of people for "alleged delaying of investigation" in the weeks and months preceeding the coup detat that we had here. To be fair, every employee or director involved in the whatsapp crime should be in jail.

> blocking whatsapp because they are being uncooperative with Brazil's legal system is completely fair.

No, WhatsApp is not subject to the judge's jurisdiction. They do not have to cooperate, respond in reasonable fashion or anything.

The power of law has limits.

> And Facebook Brasil just claims is another company. But the counter court order that removed the block the other times was filled by Facebook Brasil.

The name "Facebook Brasil" makes me wonder: what's the relationship between Facebook (the USA company), Facebook Brasil, and Whatsapp? Does anyone here know the details?

Everybody seems to be assuming that "Facebook Brasil" and "Facebook (parent company of Whatsapp)" are the same, but is that really the case? And how does that affect the jurisdictional questions involved in these cases? The decision mentions a law that says that foreign companies that have one "agência, filial ou sucursal" in Brazil are considered as having domicile in Brazil, but would that affect a different subordinate of the same parent company? Does it depend on which kind of subordinate it is?

My understanding is that Facebook Brasil and Whatsapp Inc really are different companies. And Facebook Brasil should not necessarily represent Whatsapp Inc interests.

This is exactly the claim of Facebook Brasil legal team.

FACEBOOK SERVIÇOS ONLINE DO BRASIL LTDA is a limited society incorporated in Brazil operating in advertising consultancy.

WhatsApp is a Delaware Corporation based in the USA, with no operations in Brazil.

there are big advantages to having a *-brazil version of your company if you do significant business in brazil so it's pretty common to make a little spin off just for operating there.

This happens all around the world, genius.

"Whatsapp Inc. claims is based out of Brazil"

Do you mean that they claim they are based ouside of Brazil? I guess from the context that that's what you meant, but unfortunately "based out of" means "based in." I know, crazy language we have.

Yes, edited! Thanks.

OK, great! Thanks for your perspective, by the way, very interesting comment.

> WhatsApp might have the HN crowd sympathy on this

Not mine. But Brazilian courts, with their over-arching powers, have even less sympathy; Brazilian bureaucracy, with their disregard for individual freedom, have even less sympathy; and lawmakers, with their disdain for those without as much command of the laws, the least of all my sympathy. That someone is not doing their every bidding - oh, I'm sorry, not treating them "the proper way" - is something that must be hard to muster. I guess their contempt made them blind to what makes sense and what doesn't.

Brazil doesn't get a free pass in something no one else in the civilized world is asking for.

In this case the lawmakers did the right thing, but the lower court chose to ignore the law. That's why the decision was quickly overthrown after appeal.

You're correct. I should have said "judges and lawyers" rather than lawmakers.

It may well be that responding in Brazilian Portuguese or via a Brazilian lawsuit would have weakened their case that they do not have a presence in the country.

And yes, it's also possible that it's just an arrogant law firm (always a possibility), but it's also possible that their counsel advised them specifically not to retain a Brazilian-speaking attorney, or sworn translator into Brazilian Portuguese (who typically would have some ties to the country).

Another possibility, frankly, after the last time ended up with one of their executives arrested for contempt of court, is that Facebook/WhatsApp may not have wanted to risk the freedom of some poor freelance translator in Brazil, who risked being hauled off to jail for having his name on the translation (required for legal translations in most countries).

Not only the judge is asking for a backdoor, she also claims technical limitations shouldn't put a company out of the rook for capturing on user's communication. That would mean that Brazilian people are not allowed to produce secure communication software.

I never had any sympathy for Watsapp, and still have none. But I can't have any for this judge either. Good thing the Supreme Court already overruled her.

As to whether Judge Daniela Barbosa acted wrongly, the Supreme Court has just rejected the lower court's decision, as they have every time thus far for WhatsApp bans.

But I hope that at least part of the conversation can be brought back to the issue of encryption in Brazil. This case is simultaneously also about whether encrypted communications are okay in Brazil, because the Brazilian government wants a company abroad to put backdoor features into their software. That means that no Brazilian may have secure communications without backdoors.

I cannot imagine that Brazilians trust their government anymore than Americans. I propose that any government will always be able to lift any privilege (aka right) in the legitimate or illegitimate pursuit of its interests, but that the citizen should not voluntarily forfeit their ability to secure themselves, especially with something as non-violent and social as communication security.

Also, even when a government is legitimately pursuing its interests in determining the criminality of a citizen, if Brazilian prosecution is anywhere near as hostile and adversarial as the US, then the Brazilian individual ought not voluntarily yield themselves to government investigation, even if they are innocent or righteous.

what exactly is the argument here ? That it is OK for a government to be revengeful on a non-cooperative opponent ?

The argument is: do not deal with the justice system as you deal with customer support. Disrespect court orders have consequences. This is not the government being "revengeful", it is the government enforcing the law.

It's questionable that the judge is enforcing the law. Evidence: her decision has been reversed already.

http://www.conjur.com.br/2016-jul-19/stf-derruba-decisao-jud...

Erm, what?