photo by Alvaro Ibanez
If you want to see where the FBI’s campaign against Apple could lead, look south to Brazil.
Authorities there arrested a local Facebook executive after the company failed to turn over the content of messages on WhatsApp, a messaging service that is reputedly the most widely used app in Brazil with approximately 93 million users.
Oh, and by the way, Facebook does not store or retain the content of WhatsApp messages. The Brazilian criminal investigators want the company to turn over something it doesn’t have.
A higher judge freed Diego Dzodan, Facebook’s vice president for Latin America, after about 24 hours. The judge characterized his detention as “extreme” and “unlawful coercion,” the BBC reported. Facebook has emphasized that WhatsApp operates independently but that the company is “available to address any questions Brazilian authorities may have;” an unnamed source said that Dzodan’s office was sales-focused and had no access to user data, which, if true, would make his detention even more abusive.
This is not the first time Brazilian authorities have gone to extremes against Facebook and WhatsApp. In December, a different judge, presiding over a different investigation, ordered the service halted for the entire country – affecting not only millions of users in Brazil, but their neighbors in Chile and Argentina as well – for similar noncompliance. In that case, too, the order was soon reversed.
WhatsApp’s statement then was consistent: “We’re disappointed that a judge would punish more than 100 million people across Brazil because we were unable to turn over information we didn’t have.”
FBI Director James Comey, who is leading the charge against Apple’s iPhone encryption, might ask, “What’s the problem?” After all, the overreaching orders in Brazil were both soon reversed. When he does, we ought to offer to pick up some innocent party – say, a member of his family – and hold that person in jail for a while to see if that changes Comey’s point of view regarding coercive detention for relatively brief periods.
Just kidding. I would never advocate jailing innocent people or punishing low-level employees in order to coerce a corporate higher-up. Which is one reason I’ll never work at the Justice Department.
Like the FBI, Brazilian law enforcement is engaged in important investigations that, from a law enforcement perspective, seem to justify even extreme steps to secure every conceivable information-gathering tool. Such a tool need not even exist, as long as authorities think they can force someone to make it. Brazil has a crippling problem with government corruption and, after decades of inaction, prosecutors there are making a genuine and effective effort to impose the rule of law. Last week that effort went as far as the detention of former President Luiz Inacio Lula da Silva, universally known as Lula, in connection with the probe. As someone who has many friends and business contacts in Brazil, I applaud authorities’ effort.
However, in Facebook’s case as in Apple’s, the severity of the crimes in question is not at issue. Apple has pointed out that if it develops hacking tools to help the FBI in the San Bernardino terror investigation, there is no way to stop repressive regimes like Russia, China and Iran from demanding similar access. Events in Brazil demonstrate that such demands will not come only from authoritarian governments, but from other democracies that have legitimate security concerns and that, like us, must balance public rights and law enforcement goals.
There is no way to stop even our own FBI from making similar demands in other cases, which it already has done. The FBI’s desire to use San Bernardino as a Trojan horse to get inside Apple’s encryption fortress is plain to see. And thanks to what is happening in Brazil with WhatsApp, so are the inevitable consequences, especially if the United States loses the moral standing to object to legal coercion abroad because we employ the same tactics at home.