Brazilian supreme court justice Alexandre Moraes’ sweeping order last night blocking access to X/Twitter is I think a foretaste of action by other courts and governments around the world. They will no doubt be watching closely.
UK courts have 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, 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).
Justice Moraes’ initial order went further, additionally ordering Google and Apple to remove not just the X app from their stores, but also Virtual Private Network (VPN) software which could enable circumvention of the block imposed by telecoms companies.
Here is a quick DeepL translation of that section (2) of the order, which is even broader…
(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
This part of judge Moraes’ order has now been withdrawn, but (of course) we’ll also see similar attempts to require app stores and other intermediaries to block access to VPN and other software which enables access to injuncted sites.
I’m glad this massively overreaching element has been withdrawn. But ultimately I don’t 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, then he needs to fight that out in the Brazilian courts, and in the meantime block access to the contested accounts to Brazilian users. I also wonder when we’ll see blocking injunctions applied to VPN providers, and then recursively for ISPs to block those which don’t follow them.
Douwe Korff and I wrote much more on this topic years ago (2012) for the GNI. I don’t think many of our conclusions would be different today.
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in reply to Ian Brown • •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.