Was the arrest of a Facebook exec in Brazil justified?

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Friday, March 4, 2016

In a move that raised eyebrows in Brazil and overseas, a judge ordered this week the detention of Facebook's Latin America VP, Diego Dzodan.

The executive was released the following day, but by then the dispute between Brazilian authorities, who were demanding instant messaging data for a criminal investigation, and the US social media giant had made international headlines.

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A Sergipe state judge argued that Facebook repeatedly ignored calls to cooperate with a request for WhatsApp messages from potential drug traffickers, even after issuing court orders and fines.

WhastApp does not have a legal representation in Brazil, but Facebook – which acquired the instant messaging firm in 2014 – does, and that is the reason one of its executives was detained.

"We have the ultimate respect for Brazil and for its laws, and it has always been our goal having a constructive dialogue with authorities," Dzodan, who spent a night in a São Paulo jail and answered written questions sent by the Sergipe judge, wrote on his Facebook page after being released:

"It was an extreme measure, considering the overall characteristics of the arrest," digital rights lawyer Victor Haikal told BNamericas.

"However, it should not be considered unsuitable if Facebook did not comply with the judicial branch, either by not manifesting itself in the course of the process; by not providing information it owned, or by not proving it actually did not own the information."

Adriano Mendes, an attorney at the Assis e Mendes law firm, believes Dzodan's detention negatively affected the international image of Brazil's justice system, and that it was carried out with the goal of creating a media storm. He said local government officials can "ignore" unfeasible court orders – for such things as distributing medicine to residents – without being detained.

In a statement following the arrest, WhatsApp said it does not store the delivered messages of its users.  

Mendes said the best way to access potentially criminal information from global internet companies is through the mutual legal assistance treaty (MLAT), which was signed on by Brazil. Haikal, however, said this path is "bureaucratic."

Both lawyers cite Brazil's internet bill of rights, known as Marco Civil da Internet, whose article No. 15 states that internet application providers must store, for a period of six months, application access logs. That means providers are obliged to keep information such as who talked to whom, when and where, but not what was talked about.

Article No. 7 does talk about content, ensuring "the inviolability and secrecy of user's stored private communications, except upon a court order." Section two of article No. 10 walks the same line: "The content of private communications may only be made available by court order, in the cases and in the manner established by law."

Mendes, who has been one of main backers of Marco Civil and one the first lawyers to invoke the legislation in a legal case, concedes that the legislation is not clear in certain aspects.

Another argument raised by the WhatsApp case in Brazil is that the service operates independently of Facebook, and that therefore Dzodan should not have been detained.

Most lawyers, however, understand that if WhatsApp provides service on Brazilian soil, then it must be made legally liable; and if it does not have local legal representation, then a related company must step up. In this case, the legally established Brazilian subsidiary of Facebook.