Blocking X in Brazil
Brazilian supreme court justice (above) Alexandre de Moraes’ sweeping order last night blocking access to X/Twitter is a foretaste of action by other courts and governments around the world. They will no doubt be watching closely.
UK courts have for years ordered ISPs to block access to sites infringing intellectual property rights, which is something explicitly required by EU law but also imposed under much broader notions of judicial authority (the last time I looked, s.37 of the Senior Courts Act 1981). I acted as an expert witness in one of the precedent-setting cases, Cartier and others vs BSkyB and others EWHC [2014] 3354 (Ch). I wonder when we’ll see such blocking injunctions applied to Virtual Private Network (VPN) providers, and then recursively for ISPs to block those which don’t follow them.
Justice de Moraes’ initial order similarly targeted Brazilian ISPs (and telecoms companies) but went further, ordering Google and Apple to remove not just the X app from their stores, but also VPN software which could enable circumvention of the block imposed by telecoms companies — and even threatening users of VPNs or other tools to evade the block with daily fines of nearly US$9,000.
Here is a quick DeepL translation of those sections (2 and 3) of the order:
(2) The summons, to be served within 5 (five) days, and must immediately notify the court, of the following companies:
(2.1) APPLE and GOOGLE in Brazil so that they insert technological obstacles capable of making it impossible to use of the “X” application by users of the IOS (APPLE) and ANDROID (GOOGLE) systems and remove the “X” application from the APPLE STORE and GOOGLE PLAY STORE stores and, similarly, in relation to applications that enable the use of VPN (virtual private network), such as private network), such as: Proton VPN, Express VPN, NordVPN, Surfshark, TOTALVPN, Atlas VPN, Bitdefender VPN;
(2.2) That manage backbone access services in Brazil, so that they insert technological obstacles into them that make it impossible to use the application “X”;
(2.3) Internet service providers, in the form of their CEOs, such as ALGAR TELECOM, OI, SKY, LIVE TIM, VIVO, CLARO, NET VIRTUA, GVT, etc…, so that they insert technological obstacles capable of making it impossible to use the application “X”; and
(2.4) That manage personal mobile services and switched fixed telephone services, so that they insert technological obstacles capable of making it impossible to use the use of the “X” application
(3) APPLICATION OF A DAILY FINE of R$ 50,000.00 (fifty thousand reais) to natural and legal persons who engage in conduct involving the use of technological subterfuges to continue communications through “X”, such as the use of a VPN (“virtual private network”), without prejudice to other sanctions, in accordance with the law.
Section 2 of Justice de Moraes’ order has now been suspended, but (of course) we’ll see similar attempts elsewhere to require app stores and other intermediaries to block access to VPN and other software which enables access to injuncted sites. I’m surprised the order did not also target payments by Brazilian advertisers to X. De Moraes has also targeted Starlink, another Musk business present in Brazil.
While I’m glad this massively overreaching element of his initial order has been suspended, I don’t ultimately see what other option than blocking the service the Brazilian supreme court had against a company so blatantly refusing to act in accordance with Brazilian law.
If Musk thinks (as he claims) the orders to X are against Brazilian law, including its constitutional and international law commitments to freedom of expression, then he needs to fight that out in the Brazilian courts, and in the meantime block access to the contested accounts to Brazilian users.
Douwe Korff and I wrote much more on this topic years ago (2012) for the Global Network Initiative. I don’t think many of our conclusions would be different today. But more broadly, this case is a reminder that democracies should not allow businesses to grow to the size where they can treat governments and courts with impunity (or indeed use their capabilities as massively partisan supporters of one party, as Musk has supporting Bolsonaro — as well as Trump, and racist British rioters).
PS Here’s the best summary I’ve yet seen (by Radley Balko) of the more detailed issues at stake, on X competitor Bluesky, which saw an influx of ½m new Brazilian users even before ISPs started implementing the block. I assume they have now started removing it! UPDATE: the block remains in place under section 1 of the order.
Trying to map this out.
Musk won’t give user data to Brazil gov.: 👍 because he ❤️ Bolsonaro: 👎 & he did give data to other authoritarian governments: 👎
Brazil demands user data: 👎 but to protect democracy: 👍 but then shuts down X for not complying: 👎 & fines people for accessing X through VPNs: 👎👎👎
Former UN Special Rapporteur on freedom of expression, Prof. David Kaye, also has a strong discussion there.
UPDATE: “The application of a daily fine [for using VPNs] to individuals and legal entities in a broad and generalised manner represents a serious affront to the fundamental rights enshrined in the constitution,” said the Brazilian Bar Association in a note to the Supreme Court.
UPDATE 2: Much harder for Brazil to shut down Starlink due to the connectivity it provides for remote communities. But I don’t think this move will help X much; the vast majority of Brazilian users will still be missing, making the service much less compelling for their compatriots.
UPDATE 3: on 2 Sept, ‘five of the [Brazilian supreme] court’s justices were asked to consider Friday’s decision to temporarily banish X from Brazil, where the platform has more than 21 million users. By lunchtime all five had voted in favour of the ban.’ Three judges ‘agreed with perhaps the most contentious part of Moraes’s earlier ruling: the prohibition of the use of “technological subterfuge” such as virtual private networks (VPNs) to bypass the blocking of X… now punishable with a fine of 50,000 reais (£6,760) a day.’
@ian Has there been much analysis of how the use of VPNs by companies, could affect or be affected by, decisions to ban or block VPNs? Or the operation of VPNs for personal use?
Banning or blocking VPN service providers might make sense, but some companies route network traffic through firewalls/proxies outside the jurisdiction which have the exact same effect (e.g. I used to work in Ireland for a Dutch company, and all outbound traffic emerged onto the internet in The Netherlands, regardless of where I was physically located). Would such a ban apply to these totally-normal corporate networking architectures (e.g. an American company in Brazil whose local staff can access twitter from within the corporate LAN)?
Also, I operate a VPN in my own home, which I use whenever I’m out and about. E.g. when I’m in a café down the street, I’ll connect through my VPN at home; when I visit my parents 200km away, I connect to my VPN at home; and, of course, when I’m travelling abroad I connect to the VPN at home. Is there much analysis regarding this use case and proposals to ban VPNs?
I can’t see how a general ban on VPNs can work if these use cases aren’t properly considered, and if either of these use cases are excepted from such bans, I can’t see — politically — VPN bans succeeding in the long run as a viable or appropriate recourse for the law or the courts.
@ian
Clearly the initial order was broad, overreaching, and setting a dangerous precedent if it fell in the hands of an authoritarian government.
OTOH Brazilian judges can’t be at fault for Musk deciding not to have a legal presence in their country, and not complying with any laws and regulations.
For all of the faults of the Brazilian judiciary, their country has some of the most protective pioneering legislation of individual privacy and data ownership rights in their Habeas Data laws.
https://en.wikipedia.org/wiki/Habeas_data
#Brazil #X #ElonMusk #Twitter #HabeasData
@haitchfive @ian
I understand them kicking out X. But the judge really lost the plot with banning VPNs.
And I don't see the logic in attacking Starlink. Starlink is not X. Its an ISP. For remote parts of the country that is likely their only viable connection to the internet.
Outlawing VPN's and removing people's access to the internet are the actions of an authoritarian government.
@junkman @ian
As acknowledged above, and as later reverted.
@ian
No amount of willing of a supranational superpower to bend jurisdictions and the rights of hundreds of millions upon their sole whim is going to make the judiciary branch magically disappear, even in cases where they may be completely motivated by an instinct of self-preservation. Especially when they are.
@ian
Placing the privileges of a supranational non-entity (from their legal perspective) above the rights of the Brazilian citizens would have been the absurd thing to do.
It’s the world of the absurd that some people have become accustomed to through no lack of normalisation efforts where up must be down, although most other people in the world would probably beg to disagree.
@haitchfive
Yes but the concept that the rich are also bound by the law is rather revolutionary in the USA.
The irony is that Naziboy's X could have appealed the decision, but that would have meant having a representative in Brazil making the issue moot temporarily.
@ian @glynmoody
@yacc143 @ian @glynmoody
🤷