The Vice President of Facebook for Latin America, Diego Jorge Dzodan, was released from prison on March 2nd, following a habeas corpus ruling delivered by court of appeals judge Ruy Pinheiro da Silva in the State of Sergipe.
Dzodan was detained on March 1st at his home in São Paulo after the company refused to hand over data relating to conversations on WhatsApp (which is owned by Facebook) for an investigation by Brazil’s federal police into drug trafficking. Judge Marcel Maia Montalvão of the Criminal Court of Lagarto in the State of Sergipe issued a warrant for Dzodan to be remanded in custody. As the proceedings in this case are confidential, the exact circumstances that led the judge to take such an extreme measure cannot be easily determined.
In a statement published on the website of the Sergipe Court of Justice (SCJ), Montalvão states that the detention was related to an “inter-state drug trafficking case,” and that the federal police had requested that they be able to “breach the confidentiality of messages exchanged on WhatsApp. This was granted by the judge.”
Montalvão also states that, “even after being given three opportunities, Facebook did not release the conversations requested by the federal police. Consequently, the judge ordered that a fine of 50,000 reais [USD 13,000] be imposed each day the order was not complied with; the company still did not submit to the order. The daily fine was then increased to 1 million reais [USD 260,000], but Facebook still refused to fulfil the court order to reveal the conversations on the WhatsApp application.”
The statement ends by saying that, “in view of the fact that the orders were repeatedly not complied with, Judge Marcel Maia ordered the arrest of the company’s senior executive in Brazil, Mr. Diego Dzodan, for obstructing a police investigation, pursuant to Article 2(1) of Law 12.850/2013.”
The law referred to by the judge is known as the Organised Crime Act. The paragraph cited as the grounds for the decision establishes that “penalties will apply to any person who prevents or in any way obstructs the investigation of a crime involving a criminal organisation.” In this instance, the penalty Mr. Dzodan faces would be imprisonment of between three and eight months, plus a fine, without prejudice to penalties imposed for any other criminal offences.
It is important to underline that, according to the SCJ statement, the request refers to the “breach of confidentiality of the messages exchanged on WhatsApp.” The main argument cited by Facebook in its defence is that the company only keeps messages until they have been delivered. Once delivered, they only exist on the devices of the users who receive them.
However, the Brazilian judiciary does not appear to believe the claim that the application does not store said data, as it is not the first time that extreme judicial measures have been taken to obtain the content of WhatsApp messages. Back in December 2015, WhatsApp was shut down for 12 hours throughout Brazil because the company had failed to comply with a ruling handed down by the 1st Criminal Court of São Bernardo do Campo in São Paulo.
However, under Brazilian law, it is not mandatory for apps to retain the content of communications. The Brazilian law governing online rights and duties, the Civil Rights Framework for the Internet, only requires online applications to keep connection and access logs (for a defined period of time).
While it could be argued that the decision to arrest Dzodan followed the due process of law and was based on the cited legislation, ARTICLE 19 considers the measure disproportionate for the intended purpose and detrimental to the fulfilment of other rights, such as the rights to privacy and freedom of expression.
Private communications and Internet use are key to freedom of expression, as confidential communication between peers is essential for some forms of social and political mobilisation and coordination. Although the request to access the WhatsApp messages stems from the apparently legitimate motive of investigating a drug trafficking crime, the precedent that would be set were the information to be handed over, could lead to pressure for the disclosure of data in the context of less serious crimes. It could also jeopardise the application’s future in Brazil, as privacy and security would no longer be guaranteed in its communications.
Even where ordered through judicial channels, the systematic reliance on the interception of private communications to resolve police cases is too widespread in Brazil, and is often favoured over other forms of investigation. Not only does the judiciary exercise great flexibility when analysing requests, but there is also clear exaggeration by the authorities when seeking to obtain this type of evidence.
ARTICLE 19 contends that the consideration of requests to share private information, especially in the area of telecommunications, must always respect fundamental human rights and be undertaken from the perspective of necessity and proportionality, with the constant objective of preventing abuses and violations of privacy.