<\/p>\n
On May 27, 2020, the plenary session of the Federal Supreme Court resumed the judgment of 2 (two) constitutional actions that question the interruption of the Whatsapp services by judicial orders and the interpretation of specific points from the Law No\u00a012.965\/2014 (\u201cBrazilian Civil Rights Framework for the Internet<\/u>\u201d).<\/p>\n
The trial is another important step in the implementation of a digital law agenda in the country and occurred just two (2) weeks after the Supreme Court decided, in a historic decision, to suspend the effectiveness of Provisional Measure No.\u00a0954\/2020, which determined that landline and mobile telephone companies should share their users’ personal data with the Brazilian Institute of Geography and Statistics (\u201cIBGE<\/u>\u201d).<\/p>\n
In the Statement of Non-Compliance with Fundamental Provision Action 403 (\u201cADPF\u00a0403<\/u>\u201d), the Popular Socialist Party (\u201cPPS<\/u>\u201d) alleges that in judicial orders that determined the blocking of Whatsapp, there was a violation of the fundamental provision of freedom of communication and expression, guaranteed in article 5, item IX, of the Federal Constitution (\u201cCF<\/u>\u201d) and also in the Brazilian Civil Rights Framework for the Internet, art. 3, I.<\/p>\n
The complaint targets two (2) judicial decisions, issued by the Criminal Courts of the District of Duque de Caxias\/RJ and Lagarto\/SE in 2016, which had ordered the suspension of communications via Whatsapp. The court orders were suspended outright by a monocratic decision under ADPF\u00a0403 of the Supreme Court Minister Ricardo Lewandowski and the WhatsApp messaging service was immediately restored.<\/p>\n
On the other hand, in the Direct Action of Unconstitutionality 5.527 (“ADI\u00a05.527”), proposed by the Party of the Republic (“PR”), questions the constitutionality of the application of the sanctions provided for in article 12, item III, of the Brazilian Civil Rights Framework for the Internet to providers of communication applications, such as Whatsapp.<\/p>\n
The joint reading of article 12 of the Brazilian Civil Rights Framework for the Internet with articles 11 and 7, II and III, of this law, allowed Judges to determine the temporary suspension of these providers on the grounds of the non-compliance with a court order.<\/p>\n
The Brazilian Civil Rights Framework for the Internet guarantees the inviolability and confidentiality of the flow of communications over the Internet and the content of such communications stored on providers\u2019 platforms (Article 7, II and III).<\/p>\n
There is only one exception to this inviolability safeguard, and it occurs if access to the information is backed by a court order.<\/p>\n
Both the open interpretation promoted by the exception and the effects resulting from its non-compliance were present in the Supreme Court\u2019s judgement session when the reporting ministers of ADPF\u00a0403 and ADI\u00a05.527 read their votes.<\/p>\n
Outwardly, the exception could not only support access to private communications for purposes of supporting criminal investigations but also guarantee access to private information to anyone who had obtained a favourable court decision to that request.<\/p>\n
The PR, who authored ADI\u00a05.527, maintained that there was a violation not only of the freedoms of communication and expression, constitutional and infra legal guarantees, but also the violation of the principles of free initiative (article 1, IV, CF), of free competition (article 170, caput, CF) and proportionality.<\/p>\n
The discontinuity of communication services could also cause, according to the PR, a possible violation of consumer rights, since a court order to seek evidence, in relation to a certain defendant from that market, may also have an impact on an entire community that uses the internet application provider.<\/p>\n
In the ADI\u00a05.527 judgement, the rapporteur of the action in the Supreme Court, Minister Rosa Webber, chose to take the judgment directly to the plenary without evaluating the preliminary the injunction, initially requested.<\/p>\n
The actions were proposed in May 2016 and, a year after that, both rapporteurs, Ministers Edson Fachin and Rosa Weber called a public hearing so that data protection and privacy specialists and computer and IT technicians could be heard about the operation of a cryptography system.<\/p>\n
During the Public Hearing, Minister Edson Fachin was asked how these platforms that use cryptography can have intercepted content or disabled protection systems.<\/p>\n
In view of the connection between the discussions in the two actions, the rapporteurs decided for its joint processing.<\/p>\n
Thus, between May 27 and 28, the Supreme Court’s plenary session resumed the judgment of the actions so that the merits of the allegations could be assessed by the collegiate of ministers.<\/p>\n
In the session held on May 27, 2020 via videoconference, only the vote of Minister Rosa Weber was read, with her decision on the requests made by the PR under the ADI\u00a05.527.<\/p>\n
Minister Rosa Weber decided on the constitutionality of the following requests:<\/p>\n
(i) Interpretation in accordance with the CF to article 12, III and IV, of the Brazilian Civil Rights Framework for the Internet so that the penalties of temporarily suspending activities and prohibiting its exercise can only be imposed on connection and internet application providers in the event of non-compliance with Brazilian legislation regarding the collection, custody, storage or processing of personal data as well as privacy rights, personal data protection, confidentiality of private communications and records.<\/p>\n
The Minister decided to remove any interpretation that alone or in combination with article 7, II and III, of the Brazilian Civil Rights Framework for the Internet, extends the incidence of the suspension to cases of non-compliance with a court order that determines the availability of private communications content, especially if by a deliberate weakening of the privacy protection mechanisms included in the provider’s culture; and<\/p>\n
(ii) Interpretation according to the CF to art. 10, \u00a72\u00ba, of the Brazilian Civil Rights Framework for the Internet, in order to limit its scope to cases of criminal prosecution.<\/p>\n
In her vote, she also dismissed the request for the unconstitutionality of article 12, III and IV, of the Brazilian Civil Rights Framework for the Internet.<\/p>\n
In her arguments, Minister Rosa Weber took an important step towards coordinating the Brazilian Civil Rights Framework for the Internet legal interpretation with the Brazilian General Data Protection Regulation (\u201cLGPD\u201d), acknowledging that it is not desirable to weaken privacy protection mechanisms and private communications secrecy (such as the end-to-end encryption, employed by Whatsapp) in favour of complying with court decisions.<\/p>\n
Therefore, the decision prevailed in the understanding that only non-compliance with the LGPD can lead to the imposition of sanctions of suspension and prohibition of the activity of an Internet communications provider.<\/p>\n
In the judgment session held the following day, May 28, 2020 both the votes of Ministers Rosa Weber and Edson Fachin, as rapporteur, were read in ADPF\u00a0403.<\/p>\n
Minister Edson Fachin considered the suspension and blocking of Whatsapp to be unconstitutional by judicial decision.<\/p>\n
Its decision was to eliminate the interpretation from the legal system that authorized the breaking of cryptography by exceptional measures and the blocking of Whatsapp by judicial orders, without deeming unconstitutional articles 7, II and III, and 12, III and IV from the Brazilian Civil Rights Framework for the Internet.<\/p>\n
In this sense, it was observed in the votes of the rapporteurs of the actions in the Supreme Court a consolidation of the understanding that end-to-end encryption, as a privacy by default system, is a strong mechanism for protecting the privacy of data subjects and that such mechanism (or others, with a similar purpose) cannot be weakened by exceptional measures so that some authority can have access to the content of private messages.<\/p>\n
In the end, the Minister also acknowledged that sanctions for suspension and blocking should take place in the legal system only in cases of violation of privacy and, ultimately, of the LGPD. He even mentioned in the vote, the National Data Protection Authority (\u201cANPD<\/u>\u201d), which, according to him, will be responsible for applying sanctions for blocking or suspending companies\u2019 activities and, possibly, will give new light to the issue.<\/p>\n
The Minister concluded his vote with the following sentence:<\/p>\n
“For now, I think this Court should recognize that weakening cryptography is weakening everyone’s right to a secure internet.”<\/p>\n
Due to the fact that Minister Alexandre de Moraes asked for a longer period to assess a judgment, justified by the complexity of the issues discussed, the voting of the actions by the collegiate of Ministers did not occur and the judgment will be rescheduled, on a date yet to be defined.<\/p>\n
What the trial demonstrates is the recognition by the rapporteurs of the actions of the relevance of the LGPD and ANPD to discipline situations in which the suspension or blocking of the activities of a company must prosper.<\/p>\n
As these are extremely exceptional measures and restrict the application of the constitutional principles of free initiative and competition, or possibly affect the rights of thousands of consumers, as discussed above, their imposition must be justified in view of the damage or risk to the privacy of data subjects in the specific case, which should be defined, on a case-by-case basis, by the ANPD in coordinating the application of the Brazilian Civil Rights Framework for the Internet along with the LGPD.<\/p>\n
It is already known, however, that there is an endorsement in the Supreme Court, made by the rapporteurs of the actions herein discussed, that the access to the content of private communications should be restricted to judicial orders handed down only in cases of prosecution of criminal infractions and never to the detriment of data protection and privacy for all of the users of the platform; this understanding should be confirmed when the Supreme Court concludes the judgment of ADI\u00a05.527 and ADPF\u00a0403 in the Plenary.<\/p>\n
This article is intended exclusively to provide information and does not contain any opinion, recommendation or legal advice from KGV Advogados concerning the matters here addressed. Copyrights are reserved to Kestener, Granja & Vieira Advogados<\/em>.<\/p>\n <\/p>","protected":false},"excerpt":{"rendered":" On May 27, 2020, the plenary session of the Federal Supreme Court resumed the judgment of 2 (two) constitutional actions that question the interruption of the Whatsapp services by judicial orders and the interpretation of specific points from the Law No\u00a012.965\/2014 (\u201cBrazilian Civil Rights Framework for the Internet\u201d). The trial…<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"inline_featured_image":false,"footnotes":""},"categories":[2],"tags":[],"class_list":["post-236","post","type-post","status-publish","format-standard","hentry","category-direito"],"_links":{"self":[{"href":"https:\/\/habeasdata.kvlaw.com.br\/en\/wp-json\/wp\/v2\/posts\/236","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/habeasdata.kvlaw.com.br\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/habeasdata.kvlaw.com.br\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/habeasdata.kvlaw.com.br\/en\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/habeasdata.kvlaw.com.br\/en\/wp-json\/wp\/v2\/comments?post=236"}],"version-history":[{"count":1,"href":"https:\/\/habeasdata.kvlaw.com.br\/en\/wp-json\/wp\/v2\/posts\/236\/revisions"}],"predecessor-version":[{"id":237,"href":"https:\/\/habeasdata.kvlaw.com.br\/en\/wp-json\/wp\/v2\/posts\/236\/revisions\/237"}],"wp:attachment":[{"href":"https:\/\/habeasdata.kvlaw.com.br\/en\/wp-json\/wp\/v2\/media?parent=236"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/habeasdata.kvlaw.com.br\/en\/wp-json\/wp\/v2\/categories?post=236"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/habeasdata.kvlaw.com.br\/en\/wp-json\/wp\/v2\/tags?post=236"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}