Facebook Brasil requests injunction related to MLAT evidence disclosure case before Supreme Court

29 June 2018 12:06pm

25 June 2018. By Rodrigo Russo.

Facebook Brasil has filed for an injunction related to an issue the Brazilian Supreme Court is weighing: whether mutual legal assistance treaties, or MLATs, are the only legal instrument that local authorities may use when asking tech companies based in other countries to disclose data, such as WhatsApp chats or Facebook messages, for use as evidence.

In the request seen by MLex, the Facebook Brasil, whose parent is based in the US, asked the high court to suspend use of all evidence it understands to be related to MLATs in current court cases until it decides the issue.

Facebook Brasil's request, filed Thursday, said an injunction is needed because decisions in cases filed while the Supreme Court's ruling is pending have imposed financial sanctions on the company, and some employees are facing financial and criminal sanctions as well. It argued that these sanctions, the intent of which is to obtain data that Facebook Brasil neither has nor controls, are not proportionate and violate due process.

If the Supreme Court denies the injunction request, Facebook Brasil asked that it alternatively suspend the effects of sanctions already imposed on the company and its employees, notably the asset freezes determined by courts via an online system directly linked with Brazil’s banking institutions.

“The denial of an injunction request in this case will lead to: (i) frequent criminal charges, with the possibility of arrests of employees of Brazilian companies affiliated to the data comptrollers located in the United States; and (ii) the maintenance of daily fines imposed by criminal courts, which are defined without any quantitative criteria, having varied from 500 reais ($132) to 1.5 million reais ($396,240) in lawsuits filed against Facebook Brasil,” the company said in its request.

Although all cases mentioned by Facebook Brasil in its filing remain under seal, the company disclosed a recent decision by Brazil’s second-highest court, which in May upheld a lower court order freezing 2.6 million reais ($686,810) in the company's bank accounts.

Supreme Court MLAT case

Last year, the Federation of Association of Information Technology Companies filed a direct motion of constitutionality, challenging the current procedures used by the country's courts and authorities to demand information from tech companies. Facebook Brasil joined the Supreme Court case as an interested party in February.

Currently, in most cases authorities request the information directly from the Brazilian units of the tech companies rather than from their foreign-based parents — as happened when Facebook Brasil was fined $33 million by a federal court in the state of Amazonas for failing to disclose evidence from WhatsApp chats in a corruption probe.

Under MLATs, which are used by authorities in one country when seeking evidence from companies based in another, companies have to be analyzed in accordance with the laws of the assisting country. The United States' Stored Communications Act establishes strict limits on the disclosure of data, and Brazilian authorities could frequently see their requests refused, which would hamper a wide range of investigations in which data would be valuable evidence.

Third option?

Facebook Brasil told the Supreme Court that Brazilian authorities could sign a new bilateral treaty with the United States for the exchange of data from digital communications tools based on the provisions of the US Cloud Act.

The company said it understands that under such a treaty Brazilian authorities would be able to request data of private communications directly to the US companies who control this information without violating the Stored Communications Act provisions.

“This would be an additional tool of international legal cooperation, one that can be implemented by the Executive branch and that could lead to a quicker enforcement of Brazilian judicial orders”, the company said in its filing.

Justice Gilmar Ferreira Mendes is the lead justice in the case.