Facebook Exec Jailed in Brazil Over WhatsApp

Last week, Facebook Regional Vice President Diego Dzodan had to be bailed out of a Brazilian prison. Brazilian police officers made the arrest in response to Facebook’s failure to produce the WhatsApp messages that Brazilian law enforcement demanded due to the messages’ alleged connection with a drug trafficking investigation.

diego dzodanThis dispute is one of an increasingly large number of examples of issues between national law enforcement agencies and tech companies that sell encrypted services to private users. In general, politics and tech are becoming more intertwined than ever.

Digital data is a relatively new element in the global political scene, meaning that laws vary widely from one nation to the next. Many European nations have laws in place that protect citizens’ privacy and tend to value it over the potential for government law enforcement to be more effective in certain cases. Other nations, especially those being ruled under authoritarian regimes, limit their citizens’ ability to access web anonymity in every way they possibly can.

This wide variance in approach towards cyber security is responsible for the mishap in Brazil, and many believe it will cause future incidents.

“These conflicts will continue, because the way foreign governments can obtain data stored with a U.S. provider is to go through the Mutual Legal Assistance Treaty Process,” stated Jadzia Butler. Butler is associated with the Center for Democracy and Technology, where she servers as a fellow on privacy, surveillance, and security. “Unfortunately, this process is extremely cumbersome. It can take up to 10 months for a foreign law enforcement agency to get the data it needs… so governments like Brazil and others have started to resort to extreme tactics in order to get data.” Such measures could include the issue of data localization mandates and the purposeful intimidation of relevant local officials.

facebookThis issue attracted the attention of the House Judiciary Committee last month during a hearing specifically on the subject of MLAT. MLAT stands for mutual legal assistance treaty and is an agreement between two or more countries for the purpose creating compromising communication that will allow relevant countries to enforce public or criminal laws in a way that is consistent and understandable. Nations have developed particular methods for requesting and obtaining evidence for criminal investigations and prosecutions held across borders.

The hearing that occurred last month attempted to establish which rules should apply in the event that two different countries claim jurisdiction over the same piece of data.

Gregory T. Nojeim, director of the CDT’s Project on Freedom, Security and Technology, had this to say:

brazil“Increasingly, one country’s law will require disclosure and another country’s law will prohibit it, or at least subject the disclosure to local rules that the requesting country may find difficult to meet. Because of the explosive growth of global communications and of the communications service providers, and because of the increasingly central role that communications content and metadata play in law enforcement investigations worldwide, this problem is growing…Moreover, because the largest communication service providers are located in the U.S., the volume of data demands coming into the U.S. from foreign governments far exceeds the volume of demands made by the U.S.”

This puts the U.S. at a particularly important position in terms of creating its own precedent for how to cope with government surveillance vs. privacy rights. Its jurisdiction will be the starting point with which foreign governments must compromise.

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