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When will the Lawyers Understand WhatsApp And Encryption?

20/07/2016 14:40 | Updated 20 July 2016

Once again the Facebook-owned messaging service WhatsApp has been banned by a judge in Brazil. This time it's the courts in Rio and is now the third time in the last eight months that the service has been banned in Brazil.

During the last few bans it was live again after about a day of inactivity, but those bans were also for specific periods of time. On this occasion the judge has banned it indefinitely and asked Facebook to pay a fine of R$50,000 ($15,000) for each day that the ban continues.

Now the courts and Facebook are stuck in a Kafkaesque situation. The courts insist Facebook hands over information about user activity. Specifically, the police are interested in conversations taking place between drug dealers. Facebook has responded that ever since November 2014 the service has offered point-to-point encryption.

So, without dwelling on the technicalities, the message sent from one phone to another is encrypted and although WhatsApp transports the message, the team at Facebook cannot read what is being sent.

There are no conversation records at Facebook. They don't see conversations in a secret central bunker. There is no 'Dr Evil' perusing the most interesting messages at Facebook HQ because they can't even understand the encrypted messages sent from one phone to another.

This continuous agitation by the courts in Brazil is tiresome, not only because the lawmakers clearly don't understand how encryption works, but because WhatsApp is deeply ingrained in the cultural life of Brazil. It is a service that can be used to chat with friends, but also to book a haircut, or make a hotel reservation. Businesses in Brazil are leading the world in integrating messenger apps into their customer service.

The $15,000 a day fine is peanuts for Facebook, but each time this happens public faith is shaken and users seek out alternative ways to communicate. Downloads of the Russian app Telegram soar each time these bans have taken place and the Belorussian app Viber is also a popular alternative.

But the alternative apps also offer encrypted messaging, so what do the courts think they are doing by shutting down the most popular one? How long do the courts think that they can keep on playing whack-a-mole with Internet messaging platforms?

The judges and legal teams advising them are foolish. If they are doing this to punish Facebook for their inability to comply with an information request, the question remains: how can a business supply information that they do not even possess? Information that does not even exist?

If they think that encrypted conversations between drug dealers will cease because they ban apps like WhatsApp, they are just ignorant. The entire population of Brazil has already moved on to alternative encrypted systems - the drug dealers included.

These ridiculous bans do not help the police to manage crime and they make Brazil look like a South American backwater, where businesses cannot rely on global technology platforms to be up and running. How many businesses will lose out once again because they cannot communicate with their customers? Will the judges in Rio de Janeiro compensate them for that lost opportunity cost? Of course not.

The law enforcement authorities in Brazil should really be working in partnership with companies like Facebook if they want to understand how criminals are communicating in 2016 - not subjecting them to daily fines for not handing over something they don't have. It's time for the lawmakers to stop their stupid posturing and spotlight-grabbing. Grow up and work with the technology sector if you want to fight digitally-enabled criminals.

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