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> First, WhatsApp is a US company and has no presence in Brazil. Under many readings of US law (specifically, ECPA), US companies are in fact prohibited from co

> First, WhatsApp is a US company and has no presence in Brazil. Under many readings of US law (specifically, ECPA), US companies are in fact prohibited from complying with requests from foreign law enforcement for content, except in emergencies. Instead, foreign law enforcement must make a request for assistance to the US DoJ, which will then (eventually, and maybe) process it and serve it on the US company. This is one of the reasons why MLAT reform, such as the proposed UK-US agreement[1], is so important because it would allow US companies to directly respond to foreign law enforcement requests. This is all WhatsApp's and the US's problem, not Brazil's. In fact, it's kind of insensitive for foreigners to suggest that a judge of a sovereign nation must consider US law in his rulings. If anything, I think this would justify ruling against WhatsApp more harshly, as it sends the message to the US that policies which don't respect the sovereignty of Brazil will hurt US economic interests in Brazil. That said: > Second, apparently, the data does not exist. WhatsApp publicly stated, including in testimony before the Brazilian Congressional Committee on Cyber Crimes[2], that it does not and has not retained any message content once messages are delivered, even before the recent full roll-out of E2E. Based on these statements, it would seem that WhatsApp is indeed unable to comply with the court's request, regardless of any jurisdictional arguments. If this is true, that's a solid argument and stands on its own.

Retra 10y ago
>In fact, it's kind of insensitive for foreigners to suggest that a judge of a sovereign nation must consider US law in his rulings. It's just as insensitive for a judge of a foreign nation to suggest that all foreigners must consider his rulings when making decisions under their own sovereign laws.
- c22 10y ago
  Really it's just absurd that we have borders. Ergo absurd situations arise.
  - mhays 10y ago
    Would you rather no borders exist, and a Brazilian judge ruling against WhatsApp taking out service worldwide, instead?
    - c22 10y ago
      I'm not sure what I'd prefer, but borders are an artifact of lag-induced information asymmetry that has drastically lessened with modern means of communication and travel and their existence is a pre-requisite for a lot of the fucked up power dynamics on our planet so I imagine a number of potential systems without them could be an improvement.
- deleted 10y ago
  [deleted]
- marklgr 10y ago
  If a business wants to operate in a foreign country, it seems natural to me to follow the rules of that country; the fact that the business did not open an office in that country looks irrelevant--otherwise, do not open any office abroad and do what you want. Incidentally, I wonder how the situation would be handled and what the opinion would be if some big foreign company operating in the US were shut down in the same way.
  - hrktb 10y ago
    > otherwise, do not open any office abroad and do what you want. Isn't this a fair position ? Imagine you are a lone dev creating a service that has no specific limitations. You are subject to your countries law, but should also be liable under each single law of every country where your users might happen to be ? It seems to me that countries should have the right to do what they want within their borders (including shutting down access to some services) but go the diplomatic route if they have to interact with people out of their borders.
    - patall 10y ago
      What is your problem here? He does not shut down WhatsApp in total or request info for US user or anything like that, only in Brazil. This does not affect you at all. If they do not obey the law in another country, they do not get access there. Their activities in any other country do not change.
      - newjersey 10y ago
        One problem I have is free trade. Can the US just randomly ban one of Brazil's exports? I mean the US likely exports more to Brazil than imports from it but if this weren't the case...
        marklgr 10y ago
        The US have always strictly controlled what they imported (if only via tariff) and what they exported.
- molmalo 10y ago
  Well, technically one could argue that it's not strange for a foreigner to comply with the judge's orders if they want their service to keep working in his country. They may refuse, sure, but there are consequences for that. So, in this case, "all foreigners must consider his rulings", applies only for the those who wish to keep their service working in Brazil.
- devishard 10y ago
  > It's just as insensitive for a judge of a foreign nation to suggest that all foreigners must consider his rulings when making decisions under their own sovereign laws. If you are operating in Brazil you have to follow Brazilian laws, including judges' orders. Just because I decide to do something in the US doesn't mean it's automatically legal when I do it in Brazil.
nitrogen 10y ago
As a digital native, I feel like an international Internet is more important than national sovereignty. That is, I don't think the interesting question is whether US or Brazilian law should apply, the question is how to ensure international access to international digital resources.
- mirimir 10y ago
  Internet sovereignty, for sure. It's really the only way to go. Otherwise, you get pissing matches. Brazil blocks WhatsApp. China blocks Facebook, GitHub, etc. Iran blocks so much stuff that people need to get data dumps via satellite TV. The US blocks a lot too, but mostly about gambling, "piracy", etc.
  - veidr 10y ago
    That has nothing really to do with Internet sovereignty (whatever that means). It has to do with some countries suck more, and some suck less. Plenty of countries don't block anything. Like military aggression, child mortality, literacy rate, etc., that is one important data point about any country and its government.
    - devishard 10y ago
      > That has nothing really to do with Internet sovereignty (whatever that means). If you don't know what "internet sovereignty" means, then how can you possibly claim that something had nothing to do with it?
- patall 10y ago
  I may a.gree with that but still, just because you do not like a law you have to comply. You can try to change it but as long as it exists its law for everyone. You cannot say murder should be legal, therefore I am allowed to do it.
  - newjersey 10y ago
    > I may a.gree with that but still, just because you do not like a law you have to comply. You can try to change it but as long as it exists its law for everyone. You cannot say murder should be legal, therefore I am allowed to do it. Bad laws are bad laws. If you can avoid complying with them, you absolutely should. I wonder if you'd say the same to Gandhi. "The law is for everyone so you can't evade taxes by making your own salt." https://en.wikipedia.org/wiki/Salt_March https://en.wikipedia.org/wiki/Salt_March
escape_goat 10y ago
> In fact, it's kind of insensitive for foreigners to suggest that a judge of a sovereign nation must consider US law in his rulings. My apologies, but I think that if you re-read what was written, you will find that this was not suggested. The comment was written in response to one that came to the conclusion that this "was all [WhatsApp's] fault." It is suggesting that WhatsApp is not at fault, is probably strictly complying with US law, and cannot share the information in any case. At no point does it even come close to suggesting that the judge in the case should have "considered US law" in his rulings. Moreover, I feel that your claim does not clearly differentiate between 'considering US law' as a material fact and 'considering US law' as a judicial precedent. You seem to be suggesting that someone arguing that US law ought to be held material to the case is somehow demanding that the Brazilian judiciary hold itself subservient to the US courts. You also seem to be suggesting that a Brazilian state judge has any business interpreting the law so as to "send a message" to the government of another nation, which is simply and patently untrue.
- danvet 10y ago
  Complying or not complying to a foreing judges orders is a pretty common problem for any multinational company. Even if they have local presensence, the thing requested (data, object, whatever) might be somewhere else. And simply fetching it across a border on a foreign judges order can get you into trouble for "aiding a foreign power" and stuff like that. It's worse that most local judges simple don't know that there's even a problem, and even if that'a clear to them, the judge most likely has 0 experience in making a successful request to the foreign state. And since all bureaucrats if the request isn't perfect it falls through the cracks. So often (at least if you're locally present) your laywers will need to help the judge to draft and push such a request through. Long story short: These jurisdictional issues are not at all US specific, it's everywhere. Sovereign states just don't like it all over if their citizens and companies do stuff within their borders under orders of a foreign state.
- Freak_NL 10y ago
  Huge international US-based companies tend to comply with EU laws just fine (or at least participate in the judicial process) if they are doing business there. Whatsapp can choose to assign resources to this issue, or it can ignore it and let it solve itself. If Whatsapp thinks that Brazil is an interesting market for whatever it is selling (what are they selling?) or if it is good for PR then they may choose to seek ways to intervene.
bobinator606 10y ago
"The truth is like a lion. it needs not defense. it will defend itself" -- St. Augustine
- devishard 10y ago
  St. Augustine was wrong
discardorama 10y ago
> This is all WhatsApp's and the US's problem, not Brazil's. So you're saying it's OK for Brazil to send a SWAT team to raid a house in the US? The judge's order has no validity outside his jurisdiction; just like a US judge's order has no validity in Brazil.
- devishard 10y ago
  > So you're saying it's OK for Brazil to send a SWAT team to raid a house in the US? No. > The judge's order has no validity outside his jurisdiction; just like a US judge's order has no validity in Brazil. Which is why the judge only banned WhatsApp from operating in Brazil.

Retra 10y ago

>In fact, it's kind of insensitive for foreigners to suggest that a judge of a sovereign nation must consider US law in his rulings. It's just as insensitive for a judge of a foreign nation to suggest that all foreigners must consider his rulings when making decisions under their own sovereign laws.

c22 10y ago
Really it's just absurd that we have borders. Ergo absurd situations arise.
- mhays 10y ago
  Would you rather no borders exist, and a Brazilian judge ruling against WhatsApp taking out service worldwide, instead?
  - c22 10y ago
    I'm not sure what I'd prefer, but borders are an artifact of lag-induced information asymmetry that has drastically lessened with modern means of communication and travel and their existence is a pre-requisite for a lot of the fucked up power dynamics on our planet so I imagine a number of potential systems without them could be an improvement.
deleted 10y ago
[deleted]
marklgr 10y ago
If a business wants to operate in a foreign country, it seems natural to me to follow the rules of that country; the fact that the business did not open an office in that country looks irrelevant--otherwise, do not open any office abroad and do what you want. Incidentally, I wonder how the situation would be handled and what the opinion would be if some big foreign company operating in the US were shut down in the same way.
- hrktb 10y ago
  > otherwise, do not open any office abroad and do what you want. Isn't this a fair position ? Imagine you are a lone dev creating a service that has no specific limitations. You are subject to your countries law, but should also be liable under each single law of every country where your users might happen to be ? It seems to me that countries should have the right to do what they want within their borders (including shutting down access to some services) but go the diplomatic route if they have to interact with people out of their borders.
  - patall 10y ago
    What is your problem here? He does not shut down WhatsApp in total or request info for US user or anything like that, only in Brazil. This does not affect you at all. If they do not obey the law in another country, they do not get access there. Their activities in any other country do not change.
    - newjersey 10y ago
      One problem I have is free trade. Can the US just randomly ban one of Brazil's exports? I mean the US likely exports more to Brazil than imports from it but if this weren't the case...
      - marklgr 10y ago
        The US have always strictly controlled what they imported (if only via tariff) and what they exported.
molmalo 10y ago
Well, technically one could argue that it's not strange for a foreigner to comply with the judge's orders if they want their service to keep working in his country. They may refuse, sure, but there are consequences for that. So, in this case, "all foreigners must consider his rulings", applies only for the those who wish to keep their service working in Brazil.
devishard 10y ago
> It's just as insensitive for a judge of a foreign nation to suggest that all foreigners must consider his rulings when making decisions under their own sovereign laws. If you are operating in Brazil you have to follow Brazilian laws, including judges' orders. Just because I decide to do something in the US doesn't mean it's automatically legal when I do it in Brazil.

nitrogen 10y ago

As a digital native, I feel like an international Internet is more important than national sovereignty. That is, I don't think the interesting question is whether US or Brazilian law should apply, the question is how to ensure international access to international digital resources.

mirimir 10y ago
Internet sovereignty, for sure. It's really the only way to go. Otherwise, you get pissing matches. Brazil blocks WhatsApp. China blocks Facebook, GitHub, etc. Iran blocks so much stuff that people need to get data dumps via satellite TV. The US blocks a lot too, but mostly about gambling, "piracy", etc.
- veidr 10y ago
  That has nothing really to do with Internet sovereignty (whatever that means). It has to do with some countries suck more, and some suck less. Plenty of countries don't block anything. Like military aggression, child mortality, literacy rate, etc., that is one important data point about any country and its government.
  - devishard 10y ago
    > That has nothing really to do with Internet sovereignty (whatever that means). If you don't know what "internet sovereignty" means, then how can you possibly claim that something had nothing to do with it?
patall 10y ago
I may a.gree with that but still, just because you do not like a law you have to comply. You can try to change it but as long as it exists its law for everyone. You cannot say murder should be legal, therefore I am allowed to do it.
- newjersey 10y ago
  > I may a.gree with that but still, just because you do not like a law you have to comply. You can try to change it but as long as it exists its law for everyone. You cannot say murder should be legal, therefore I am allowed to do it. Bad laws are bad laws. If you can avoid complying with them, you absolutely should. I wonder if you'd say the same to Gandhi. "The law is for everyone so you can't evade taxes by making your own salt." https://en.wikipedia.org/wiki/Salt_March https://en.wikipedia.org/wiki/Salt_March

escape_goat 10y ago

> In fact, it's kind of insensitive for foreigners to suggest that a judge of a sovereign nation must consider US law in his rulings. My apologies, but I think that if you re-read what was written, you will find that this was not suggested. The comment was written in response to one that came to the conclusion that this "was all [WhatsApp's] fault." It is suggesting that WhatsApp is not at fault, is probably strictly complying with US law, and cannot share the information in any case. At no point does it even come close to suggesting that the judge in the case should have "considered US law" in his rulings. Moreover, I feel that your claim does not clearly differentiate between 'considering US law' as a material fact and 'considering US law' as a judicial precedent. You seem to be suggesting that someone arguing that US law ought to be held material to the case is somehow demanding that the Brazilian judiciary hold itself subservient to the US courts. You also seem to be suggesting that a Brazilian state judge has any business interpreting the law so as to "send a message" to the government of another nation, which is simply and patently untrue.

danvet 10y ago
Complying or not complying to a foreing judges orders is a pretty common problem for any multinational company. Even if they have local presensence, the thing requested (data, object, whatever) might be somewhere else. And simply fetching it across a border on a foreign judges order can get you into trouble for "aiding a foreign power" and stuff like that. It's worse that most local judges simple don't know that there's even a problem, and even if that'a clear to them, the judge most likely has 0 experience in making a successful request to the foreign state. And since all bureaucrats if the request isn't perfect it falls through the cracks. So often (at least if you're locally present) your laywers will need to help the judge to draft and push such a request through. Long story short: These jurisdictional issues are not at all US specific, it's everywhere. Sovereign states just don't like it all over if their citizens and companies do stuff within their borders under orders of a foreign state.
Freak_NL 10y ago
Huge international US-based companies tend to comply with EU laws just fine (or at least participate in the judicial process) if they are doing business there. Whatsapp can choose to assign resources to this issue, or it can ignore it and let it solve itself. If Whatsapp thinks that Brazil is an interesting market for whatever it is selling (what are they selling?) or if it is good for PR then they may choose to seek ways to intervene.

bobinator606 10y ago

"The truth is like a lion. it needs not defense. it will defend itself" -- St. Augustine

devishard 10y ago
St. Augustine was wrong

discardorama 10y ago

> This is all WhatsApp's and the US's problem, not Brazil's. So you're saying it's OK for Brazil to send a SWAT team to raid a house in the US? The judge's order has no validity outside his jurisdiction; just like a US judge's order has no validity in Brazil.

devishard 10y ago
> So you're saying it's OK for Brazil to send a SWAT team to raid a house in the US? No. > The judge's order has no validity outside his jurisdiction; just like a US judge's order has no validity in Brazil. Which is why the judge only banned WhatsApp from operating in Brazil.