Controversial, dark, appropriate. These are some of the terms used by experts heard by the technoblog to define, criticize and praise the decision of STF Minister Alexandre de Moraes. This Friday (18), the magistrate ordered the blocking of the Telegram messaging app in Brazil for not cooperating with investigations into fake news.
The minister’s decision responds to a request from the Federal Police and comes after several subpoenas to Telegram, all of them without response. Internet providers will need to cut off access to the app, and app stores will need to remove it from their listings. Anyone who tries to circumvent the blocks can be prosecuted and fined up to R$100,000.
Lawyer Adriano Mendes, a specialist in digital law at Assis e Mendes, says that the determination has a legal basis. “Marco Civil provides for this type of action”, he explains in a conversation with the technoblog.
Carlos Affonso de Souza, director of ITS Rio, recalls that the scope of the Marco Civil is currently under discussion in the STF itself. Text articles dealing with the topic may lead to suspension of data processing activities, but perhaps not the activities of the application as a whole.
So far, ministers Edson Fachin and Rosa Weber have spoken out against the use of Marco Civil to block applications. Moraes would be the third to vote, but he asked for a view and suspended the trial.
Lawyer Fabrício da Mota Alves, a partner at Serur Advogados, tells the technoblog that the determination is controversial. He explains that the text assumes that there are illegalities on Telegram because the application does not respond to requests from the Justice. Therefore, there is an attempt to georeference the services offered in Brazil on the internet.
“By the criterion used, only applications or companies that have headquarters, branch, representation or communication channels with Brazilian authorities can offer services in Brazil.” Alves says this is problematic. “Only then you eliminate 80%, 90% of the applications available in official stores, because they are from companies that do not have the conditions or interest in having a representation in Brazil. There are thousands of solutions and services.”
Determination affects ordinary users
Mendes says he is against this type of determination. “In this case, the cause of the damage is ‘Allan dos Santos’ and because of him a series of people and even businesses will be affected”, he comments. “It’s like cutting off the water and power to the entire city because a house left a faucet on and the light on, not accepting orders to turn it off.”
The consequences for “ordinary” users of Telegram is also a point highlighted by Gustavo Rodrigues, coordinator of public policies and researcher at the Instituto de Referência em Internet e Sociedade (Iris).
“There is research indicating that Telegram is present in more than 50% of smartphones in Brazil. Although we know that illicit conduct takes place on the platform, most users use it for legitimate purposes, such as interpersonal communication, consumption of news and entertainment”, comments Rodrigues in a conversation with the technoblog.
The researcher recalls that, in 2015 and 2016, the STF understood that the impact of blocking WhatsApp – also determined by failing to comply with court orders – would justify a suspension of its block. Therefore, he believes that the decision will not be sustained.
Francisco Brito Cruz, director of the InternetLab research institute, tells the technoblog that the determination sets a negative precedent. “As much as we are talking about a case that involves compliance with a court order, we have to remember that this decision has an impact on millions of users who use Telegram for legitimate purposes”, he ponders.
Alves also thinks that the blockade will not have the intended effectiveness. “Criminal agents, who already militate outside the law, so they are not worried about this decision, will look for other tools to continue practicing their illicit activities.”
The issue, however, seems to go beyond that.
Telegram adopted clash, and STF wants to send a message
Mendes says that the Supreme’s intention is to send a clear message to the services that, if they are not aligned with the Judiciary, they will suffer impacts. This stance is aimed at this year’s elections, when situations involving fake news and biased information are expected to proliferate.
Politics really seems to be the password to understand the clash between the Brazilian Justice and Telegram.
“Telegram designed, from the beginning of its operations in Brazil, a strategy of antagonism with the Brazilian judiciary that would generate consequences”, explains Cruz, from InternetLab. “And the consequence came, politically speaking.”
“We have a marriage of an active and controversial Supreme on the one hand, who is determined to enforce the investigation, and, on the other hand, an irascible application. He didn’t even establish a response channel, even if it’s a challenge, to the orders of the Brazilian Justice, and then it’s a powder keg, and the pot was uncovered. It is an unsustainable situation from a political point of view and the responsibility also lies with Telegram, which adopted this stance.”
Heloísa Massaro, director of InternetLab, also recalls that Telegram refused to establish a dialogue with the Superior Electoral Court (TSE) to adopt measures to combat fake news, which exacerbated tensions between the government and the application.
She highlights that Telegram has increasingly adopted tools that bring it closer to a social network.
“We have the installation of functions like channels that work almost like social media feeds. Despite this, there is no in-depth discussion about content moderation in the app”, he ponders.
Other lawyers defend the position adopted by Moraes.
Eduardo Ramires, founding partner of Manesco Advogados, considers that the decision is absolutely legitimate and justified. “The measure adopted by Alexandre de Moraes is to exercise national republican powers so that a communication instrument responds with attention to Brazilian law, to Brazilian sovereignty and democracy”, says the lawyer in a comment sent to the report.
Adib Abdouni, a constitutional lawyer and criminalist, follows the same line. “From the moment in which the aggravation of the omission of those responsible for the administration of the aforementioned digital platform to cooperate with the Justice, the decision appears to be adequate”, he comments to the Technoblog.
Abdouni believes that the determination helps to repel the spread of demonstrations that leave the field of freedom of expression and enter into fake news, hate speech, Nazi propaganda or the sale of vaccination certificates.
In practice, banning Telegram is harder than it sounds
Bruno Bioni, director of Data Privacy Brasil, resumes the history of blocking apps in Brazil, such as Secret and WhatsApp.
Secret, in case you don’t remember it, was an anonymous messaging app used for bullying and defamation. It ended up banned in Brazil — Apple, Google and Microsoft were forced to remove the app from their stores.
WhatsApp, between 2015 and 2016, was suspended a few times, with its access cut off by telephone operators.
“This decision [do Telegram] learns from this history of blocking that already exists in Brazil, because it combines all these techniques”, explains Bioni to technoblog. “So it has a greater degree of effectiveness compared to other blocks that have already existed in Brazil.”
Mendes explains that Anatel will determine that the providers’ backbones block IPs connected to Telegram. However, the situation can be more complex than a simple order.
“The problem is that these IPs and servers can have more shared and active services. If the order is carried out, everything that is on the same IP address will not be communicated back and forth for accesses in Brazil”, says the lawyer.
In addition, Telegram itself can help. “If Telegram changes IP addresses or servers, automatically all messages will work again.”
Cruz thinks it makes no sense to think about whether the blockade will “work” or “fail”. He recalls that the internet is a decentralized network, in which subterfuge is common.
Even so, as it hits app stores, daily Telegram downloads are sure to drop, as not everyone knows how to install an APK file or use a VPN.
“We are talking about a situation that, at best, can generate a situation of instability for a number of Telegram users.”
Fine for those who dribble the block worries
You may remember the times when WhatsApp was blocked in Brazil. Souza, from ITS Rio, sees similarities and differences between the two cases.
“On the one hand, it repeats the strategy of targeting app stores, preventing app downloads, and also determines that Internet connection companies prevent access to Telegram”, explains Souza. “But on the other hand, the decision brings an unprecedented sanction for users who use technological means to circumvent the court order.”
The text of the determination contains the following excerpt:
“Individuals and legal entities that engage in conduct in the sense of using technological subterfuges to continue the communications carried out by TELEGRAM will be subject to civil and criminal sanctions, in accordance with the law, in addition to a daily fine of BRL 100,000.00 (one hundred thousand real)”.
That is: anyone who uses VPN to enter Telegram can be fined and prosecuted. Mendes, however, thinks that this text is too generic and will hardly be applied.
Alves also doesn’t believe in punishments. “Even if these people make fun of them, how are you going to identify them? The VPN is made precisely to prevent identifiability.”
Even so, Cruz harshly criticizes this possibility. For him, the fine forecast is “unbalanced”, “wrong” and “negative”.
“It is one thing for you to direct this to those involved in the investigation, who appear in the investigation that gave rise to the court order. The other thing is that you, from a confidential inquiry, which possibly would not have its decision disclosed, order a fine that can be applied and enforceable against any Brazilian”, comments the director of InternetLab. “It doesn’t seem like a proportional determination to me. That part worries me.”
Collaborated: Bruno Ignacio, Pedro Knoth.