A Facebook executive detained for refusing to give law enforcement information about users of the WhatsApp message service was released from jail on Wednesday, part of a tussle between authorities and technology companies that recalls the US dispute between Apple and the FBI.
Facebook's most senior representative in Latin America, Diego Dzodan, left a jail in Sao Paulo after one night in custody. A judge ruled he was wrongly detained because he was not named personally in the legal proceedings.
Another judge in the northeastern state of Sergipe had issued an arrest warrant accusing Dzodan of repeatedly failing to comply with a judicial order to cooperate with an investigation into drug trafficking and organized crime. Monica Horta, a spokeswoman for the federal police in Sergipe, said investigators have requested content from a WhatsApp messaging group as well as other data, including geo-location.
Investigators first contacted WhatsApp — which was bought by Facebook in 2014 — about four months ago but have yet to receive a response, Horta said. Starting two months ago, WhatsApp began to incur a daily fine of 50,000 Brazilian reais ($12,700) for every day it ignored the order. The company has not yet paid the fine, which has risen to 1 million Brazilian reais ($250,000) in recent weeks, she said.
Brazilian police argue that Facebook's stance is at odds with those of Yahoo, Google and local telecommunications companies, which have been willing to hand over user information to help investigations.
WhatsApp has been rolling out a so-called end-to-end encryption system under which only the sender and recipient can access the content of messages and it insists it doesn't have the information requested.
In a statement released on Wednesday, the company said, "arresting people with no connection to pending law enforcement investigation is a capricious step and we are concerned about the effects for the people of Brazil and innovation in the country."
The standoff has drawn comparisons to the FBI's battle with Apple following its request that the company unlock the iPhone belonging to one of the terrorists who carried out killings in San Bernardino, California.
"The Apple vs FBI case and the WhatsApp case are in many ways exactly the same thing," said Zaki Manian, a California-based cryptography engineer and privacy activist. "The encryption systems employed by these companies is such that they do not have access to encrypted data. The only way the company could access the data would be to employ a malicious update to allow access."
Brazil has cast itself as a defender of Internet freedom since revelations in 2014 that the US National Security Agency had spied on President Dilma Rousseff, her close advisers and Brazilian commercial interests, including the state-run oil company Petrobras.
Rousseff canceled a state visit to the U.S. during a diplomatic row over the disclosures, the result of leaks by former NSA contractor Edward Snowden. Rousseff also pledged to promote more home-grown Internet services and make Brazil's piece of the global Internet less US-dependent.
Some analysts say that stance is at odds with actions such as the Dzodan detention.
"The Brazilians have spent several
years complaining about the NSA.
Technology companies have now delivered products to their customers that are much more secure from the NSA and the Brazilians are now complaining that they're too secure," said Chris Soghoian, principal technologist of the American Civil Liberties Union. "So maybe you should be careful what you wish for."
"It seems like what governments want is ways to communicate that are secure from foreign governments, but that allow their own government to spy," Soghoian said. "And the fact is that those tools don't exist.
"If you want your communications to be secure from the NSA then they will also be secure from your local law enforcement."
Brazilian authorities also clashed with Facebook in December, when a judicial order forced Brazil's telecommunications companies to block WhatsApp over its refusal to cooperate with a police inquiry. The move shut down communications for many of its 100 million users in Brazil for around 12 hours.
Facebook CEO Mark Zuckerberg at the time said he was "stunned" by the "extreme decision."
Robert Muggah, research director at Iguarape, a Rio de Janeiro-based think-tank, said the latest conflict over the WhatsApp messages could bolster support for proposed legislation that would allow judges to make more demands of tech companies.
"The danger with these cases is that the pendulum is swinging too far away from digital rights to law enforcement," Muggah said.
