[governance] CGI.br clarification note regarding blocking of Whatsapp in Brazil

[Mueller, Milton L]

Good to see CGI.br reacting quickly to judicial excess. 
--MM

> -----Original Message-----
> From: governance-request at lists.igcaucus.org [mailto:governance-
> request at lists.igcaucus.org] On Behalf Of Carlos Afonso
> Sent: Monday, December 21, 2015 4:40 PM
> To: ISOC-BR <Isoc-br at listas.tiwa.net.br>; Civil Society Internet Governance
> Caucus - IGC <governance at lists.igcaucus.org>; BestBits List
> <bestbits at lists.bestbits.net>
> Subject: [governance] CGI.br clarification note regarding blocking of Whatsapp
> in Brazil
> 
> CLARIFICATION NOTE in virtue of the decision issued by the Honorable Judge
> of the 1st Lower Criminal Court of São Bernardo do Campo, ordering the
> suspension of the Internet application “Whatsapp” in the national territory of
> Brazil.
> 
> 17-December-2015
> 
> The Brazilian Internet Steering Committee (CGI.br), after taking notice of some
> excerpts of the decision issued by the Honorable Judge of the 1st Lower
> Criminal court of São Bernardo do Campo, ordering fixed and mobile Internet
> Service Providers in Brazil to suspend for 48 hours the access to the domains
> whatsapp.net and whatsapp.com and the inherent subdomains by blocking
> the traffic of any content as well as all IP addresses related to such domains
> and subdomains, including by adopting measures aimed at clearing cache
> memories related to the latter, among other measures.
> 
> HEREBY
> 
> clarifies that Article 12 of Law 12.965/2014 (or simply “Marco Civil”) only
> authorizes the temporary suspension of the activities expressly and
> exhaustively listed in the caput of article 11 of Marco Civil, i.e., the collection,
> storage, retention and treatment of logs, personal data or communications by
> Internet access/connection and application providers.
> Accordingly, article 12 of Marco Civil cannot be construed as something that
> entails the full and unrestricted suspension of all activities of Internet services
> and applications providers that operate in Brazil.
> 
> Moreover, the Steering Committee takes up this opportunity to reiterate
> some of the terms of a clarification note previously adopted by its board
> members on March 3, 2015, by which they evaluated a similar decision
> adopted by a lower court of the state of Piauí, specially in relation to the
> following aspects:
> 
> 1) Article 12 of Law 12.965/2014 comprises a group of sanctions, namely
> warnings, fines, the temporary suspension of activities involving the acts
> specified in Article 11 as well as the prohibition of exercising those same
> activities. Those sanctions shall be applied gradually and must be strictly
> aimed at entities that violate the rules related to the protection of logs,
> personal data and private communications.
> 
> 2) Any action taken against illicit activities on the network must be aimed at
> those directly responsible for such activities and not at the means of access
> and transport, always upholding the fundamental principles of freedom,
> privacy and the respect for human rights (Resolution CGI.br/Res/2009/03/P);
> 
> 3) Item VI under Article 3 of Marco Civil restricts the liability of Internet
> stakeholders to the specific extent of the activities they perform; and
> 
> 4) Article 18 of the same Law states that “the Internet connection provider
> shall not be subject to civil liability for damages resulting from content
> generated by third parties”.
> 
> The members of the board of CGI.br believe that Marco Civil does not provide
> any legal ground for the unrestricted suspension of Internet services and other
> activities and measures that adversely affect a diffuse and indiscriminate
> group of Internet users in Brazil and in neighboring countries that use the
> infrastructure and services provided by Brazilian companies.
> 
> Therefore, CGI.br takes note of the efforts entailed by telecommunications
> and network providers in the country to cope with the court order, in full
> compliance with Brazilian Law, in spite of not being parties to the respective
> action; and commends the Honorable Justice Dr. Xavier de Souza, of the Court
> of Appeals of the State of São Paulo, who issued a writ of mandamus to
> revoke the lower court's decision, normalizing the operation of Whatsapp in
> Brazil. His action realigned the jurisdictional process to the general principle
> of non-liability of the network comprised in CGI.br's Decalogue of Principles
> for the governance and use of the Internet, which provided the normative
> basis for the principles, guarantees, rights and duties enshrined in the Federal
> Law 12.965/2014.
> 
> --
> 
> Carlos A. Afonso
> Instituto Nupef - https://nupef.org.br
> CGI.br - http://cgi.br
> 
> GPG 0x9EE8F8E3

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