Brazilian Authorities Arrest, Then Free Facebook Executive in Privacy Case

March 14, 2016

facebook law practiceIn a privacy case associated with the mobile messaging platform, “WhatsApp,” police in Brazil arrested and briefly detained an executive of WhatsApp parent company, Facebook.  The case is based on a dispute associated with access to WhatsApp user messages.  It highlights the global nature of the ongoing debate surrounding privacy and law enforcement.

WhatsApp provides a system supporting mobile communications.  Since 2014, that system has been “end-to-end encrypted” for messages between Android devices.  This means that Android messages processed using the WhatsApp system are encrypted at all stages.

As part of a criminal investigation, Brazilian police wanted access to certain WhatsApp messages.  Facebook informed those authorities that the WhatsApp system does not permit even the system operators to access Android message content.  Facebook indicated that it was technically unable to comply with the order.

Matsuura Blakeley BannerThe police then took the position that Facebook was non-compliant with their order to provide the message content.  Based on that alleged non-compliance by the company, authorities arrested a Facebook executive in Brazil, Diego Dzodan.

Dzodan was held in jail for one day.  A Brazilian court then reviewed the case.  The court determined that the arrest was unlawful.  It concluded that the arrest of the Facebook executive constituted unlawful coercion, and the court order Dzodan’s release.

The issue of mandatory disclosure of communications content has been in the news in the United States as a result of the ongoing dispute between the FBI and Apple in the context of the San Bernadino shooting.  This Brazilian incident underscores the global nature of the privacy challenge with regard to investigations conducted by law enforcement authorities and national security agents.

The Brazilian WhatsApp case also highlights the potential legal threat to employees of companies involved with communications and information technologies and services.  In some jurisdictions, individual employees may find that they are held personally accountable and liable for decisions and actions of their employers with regard to data security and information privacy.

This case offers an additional perspective on the overall issue of balancing privacy rights and expectations with legitimate investigatory demands by government authorities.  As this case indicates, this issue is significant in countries around the world.  The efforts to balance individual privacy, civil liberties, and effective law enforcement in the digital environment are complicated and have not yet been effectively resolved in any jurisdiction.