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Moments before a temporary WhatsApp ban came into force across Brazil this month, panic gripped Latin America’s biggest country.
Families hurriedly called their loved ones, businesses made last-minute arrangements with suppliers, and doctors raced to send patients alternative emergency contact information.
With an estimated 100m users, the Facebook-owned messaging service is Brazil’s most popular app — testimony to the fast growth of smartphone ownership and social media even as the economy sinks into its worst recession in more than a century.
However, analysts say that a recent move by Brazilian judges to ban the messaging service for allegedly not co-operating with police investigations threatens the sector’s growth and signals a worrying shift towards a form of internet censorship.
“This generates a huge sense of insecurity in the industry and discourages other apps from setting up in Brazil,” says Fernando Stacchini, a partner at Motta, Fernandes Rocha, a law firm.
Even Mark Zuckerberg, Facebook’s founder and chief executive, weighed in, saying: “The idea that everyone in Brazil can be denied the freedom to communicate the way they want is very scary in a democracy.”
The details of the case are not public, but analysts say a judge in Sergipe state, in the north-east of the country, ordered telecom operators this month to block WhatsApp for 72 hours after the company refused to share messages sent between drug traffickers — a ban that was overturned 24 hours later by a higher court.
In a separate case last December, a judge in São Bernardo do Campo near São Paulo imposed a 48-hour ban on WhatsApp after it did not comply with judicial rulings to share information in another criminal investigation.
The judicial orders came as the rapid growth of platforms such as WhatsApp has made social media an invaluable tool in criminal investigations and put the sector at the centre of the age-old debate about privacy versus security.
Brazil households with a smartphone at the end of 2015
Between 2014 and 2015, users of Facebook, its photo sharing app Instagram and Snapchat rose 7 per cent, 15 per cent and 26 per cent respectively in Brazil as households with a smartphone increased from 55.5 per cent to 60.3 per cent, according to Euromonitor.
In the US, companies face similar predicaments. The US Department of Justice recently pursued Apple to pull data from the iPhone of one of the killers in the San Bernardino attacks.
Under Brazil’s new internet law, “Marco Civil”, which came into effect in 2014, telecoms companies and internet sites are obliged to provide authorities with metadata — information about who called who and when — but not content sent on messaging platforms.
WhatsApp responds that it would not be able to divulge the contents of messages sent via its app even if it wanted to. This year it finished rolling out end-to-end encryption which ensures messages can only be read by the sender and the recipient.
Doing so would also mean breaking the law in the US, according to Katitza Rodriguez, international rights director at the Electronic Frontier Foundation, a digital rights group based in San Francisco. The US Electronic Communications Privacy Act forbids companies from disclosing messages without a warrant issued by a US judge, so the Brazilian judge would have to seek help through a mutual legal assistance treaty.
“Judges cannot expect companies to break the laws of mathematics, nor retrospectively rewrite their entire application in pursuit of prosecutorial aims,” says the EFF. “And neither can they expect those companies to stride deliberately into legal paradoxes, where complying with a court demand in one country would lead them to violate the law in another.”
In Brazil, analysts say WhatsApp’s challenges are further complicated by the country’s legal and political difficulties.
Any local judge — of which there are more than 15,000 — is able to block an app. Many do not understand how encryption works, nor do they have the conditions to evaluate the impact of such a decision on the country as a whole, says Luiz Moncau at FGV Direito Rio, a higher education institute.
Meanwhile, some believe the country’s telecom operators have tried to exploit WhatsApp’s problems. They used to protest such shutdowns but now keep quiet as it benefits their own messaging services, says Ronaldo Lemos of the Rio Institute of Technology and Society, a think-tank, adding that this has further emboldened the judiciary.
Judges have found support among Brazilian lawmakers who have become increasingly uncomfortable with the transparency afforded by social media at a time when many are implicated in corruption scandals, says Mr Lemos.
Before the WhatsApp shutdown, the country’s congress was discussing several new laws, one of which would give judges the power to immediately block any website. Following public outrage over the WhatsApp ban, they included a clause in the bill that exempts messaging services, effectively protecting WhatsApp from future bans.
While the bill promises to benefit Facebook, Mr Lemos believes it could have catastrophic effects on the rest of the industry, turning Brazil’s once free and open internet into a chaotic mess of censorship and arbitrary restrictions. “The original purpose of the law is still there,” he says. “If it passes, a lot of authoritarian countries will be very envious of the Brazilian system.”