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

Tue Dec 22 08:26:24 EST 2015

Considering we are a multistakeholder commission, it is not always easy
to react on time, since nearly all decisions (including public
statements) are taken by consensus. But in this case we had already
issued a similar statement regarding a similar blocking of Whatsapp in
February. Interestingly enough, the action-and-reaction process was the
same (a higher court suspended the blocking a few hours later).

In that case, however, the broadband providers resisted the blocking
order with a countervailing legal action, while now they immediately
complied. Actually they complied in such a haste as to make silly
mistakes in the process (causing a propagation that blocked the service
in Argentina, Chile, Costa Rica etc), as shown in the LACNOG technical
debates on the subject.

So, in summary, we had already the consensus template :-)

fraternal regards

--c.a.

On 12/22/15 01:17, Mueller, Milton L wrote:
> 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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-- 

Carlos A. Afonso
Instituto Nupef - https://nupef.org.br
CGI.br - http://cgi.br

GPG 0x9EE8F8E3

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