How Brazil's WhatsApp ban puts spotlight on Facebook's content policies

The messaging service, which is owned by Facebook, was briefly blocked on Thursday after a Brazilian judge said it wasn't complying with a criminal investigation, with another judge reversing the decision. But some observers say the site doesn't always show the same commitment to an open Internet in other countries.

In July, the Electronic Frontier Foundation gave the messaging service WhatsApp a one-star rating for its privacy policies.

The site, which is owned by Facebook, “should publicly require a warrant before turning over user content…[and] have a stronger policy of informing users of government requests,” the watchdog noted, while commending it for Facebook’s position opposing so-called backdoors that allow government agencies to bypass normal encryption processes to access users’ data.

On Thursday, a debacle playing out in the Brazilian courts put the watchdog’s concerns on full display. Millions of users in Brazil briefly lost access to the service after a judge ordered the site to be blocked for 48 hours, saying it had not complied with a criminal investigation.

By Thursday afternoon, with concerns mounting among the site’s estimated 100 million users in the country and a slew of humorous responses on Twitter under the hashtag “#Nessas48HorasEuVou” (#Inthese48hoursIwill), a second judge in Sao Paulo reversed the ban, which was also condemned by officials at Facebook.

"Considering the constitutional principles, it does not look reasonable that millions of users be affected as a result of the company's inertia to provide information,” wrote Judge Xavier de Souza from the 11th criminal court of Sao Paulo, Reuters reports. Instead, he recommended a fine be imposed on the company.

Local media reported that the records requested by the court in Sao Bernardo de Campo, a suburb of Sao Paulo, related to use of the site by alleged members of a powerful organized crime group, the First Capital Command, though this was not confirmed by the court, according to the Guardian.

The ban comes amid a global debate about whether social media companies should be required to turn over data to government agencies and law enforcement during a criminal investigation, and how they comply with such requests.

The judge’s ban may have violated Brazil’s Marco Civil da Internet, a landmark Internet bill of rights passed in 2014 that includes net neutrality provisions and says websites are not responsible for content from third-party providers.

“This is really shocking, and illegal,” Ronaldo Lemos, the director of the Institute for Technology and Society of Rio de Janeiro told The Wall Street Journal. “What puzzles me is that one single court can exercise that kind of power, and that the telecommunications companies didn’t fight against it. It shows how fragile the Brazilian Internet is.”

The telecom companies — which have long grumbled that WhatsApp eats into their profits because the service offers free calls — didn’t seem overly troubled by the ruling, with only one of Brazil’s four biggest firms, Oi, contesting the ban, the Guardian reports.

With users left scrambling after the ban was announced, rival services appear to have benefited; the secure messaging service Telegram said it attracted more than a million new users during the outage.

“I went crazy when they canceled WhatsApp, because I wasn’t able to contact my girlfriends or my family,”  Wellington de Souza, 25, who works in a Japanese restaurant in São Paulo, told the Journal. “Only now when I was without WhatsApp I realized that I’m addicted. It’s impossible to live without [it].”

Jan Koum, WhatsApp’s founder, and Facebook head Mark Zuckerberg condemned the ban early Thursday, with Mr. Zuckerberg saying that “Until today, Brazil has been an ally in creating an open Internet.”

“I am stunned that our efforts to protect people's data would result in such an extreme decision by a single judge to punish every person in Brazil who uses WhatsApp,” he wrote in a Facebook post.

But some observers questioned if the Facebook head was as committed to similar standards in other parts of the world.

“Where was Zuckerberg’s statement when China blocked Instagram, another property owned by Facebook? Despite having a strong following in mainland China, it was rendered inaccessible in November 2014, right around the time of Hong Kong’s Umbrella Movement,” wrote Quartz’s Josh Horowitz, referencing a widespread protest against Hong Kong’s government that was condemned by government officials in Beijing as “illegal.”

Mr. Horowitz notes Zuckerberg has met several times with Lu Wei, China's so-called Internet czar, whose hardline policy stances have made him a controversial figure.

Under Mr. Lu’s leadership, China has employed the “Great Cannon,” a tool that was used in several distributed denial of service (DDoS) attacks on the web-hosting service GitHub in March, according to CitizenLab, a research group based at the University of Toronto.

Earlier this month, Lu said China had no plans to stop blocking foreign websites such as Facebook, Instagram and Twitter, despite Zuckerberg’s efforts to get the country’s leaders to change their minds, including learning Mandarin.

“I can't change you, but I have the right to choose my friends,” Lu said at a news conference in Washington on December 9, CNN reports. “We don't welcome those who come to China to make money while smearing China,” he said, adding, “It's like a family who doesn't welcome unfriendly people into their house as guests.”

Facebook’s annual transparency report reveals that some countries that have actively embraced collaborations with the social media site have also successfully lobbied for content-blocking of posts that violate local laws. WhatsApp does not publish a separate report, the EFF noted.

India, for example, where Prime Minister Narendra Modi visited Silicon Valley in September, tripled the number of posts it requested be blocked in the first half of 2015, to more than 15,000.

Brazil, by contrast, requested only seven pieces of content be blocked, while asking for the data of 1,954 users, the report shows.

The country is one of the largest markets for social media sites outside of the US, with the WhatsApp ban drawing ire from lawmakers in the country’s Congress, Reuters reports.

WhatsApp argued it didn’t have access to the information request by the court. “We're disappointed that a judge would punish more than 100 million people across Brazil because we were unable to turn over information we didn’t have,” a WhatsApp spokesperson told the wire service.

Users pointed to many uses for the service, including in stores:

“How many people are affected, be it for fun or for work?” wrote a Twitter user named Luciana França, the Guardian reports. “How many shops sell more via WhatsApp than in their physical shop. [The ban] interferes even in the economy,” she added.