Ban on VPNs to access X confirms Brazil’s judicial mess

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(This is an English version of the editorial originally published by Gazeta do Povo on Sunday, September 1st 2024.)

Due process of law, democratic freedoms and guarantees, checks and balances, rule of law – all of this became fiction in Brazil a long time ago. But last Friday, when Supreme Court justice Alexandre de Moraes blocked the social network X throughout the country, we are officially at a new degree, that of legal mess in which the only rule in force is the will of a Supreme Court justice. Moraes, who already considered himself the foolproof embodiment of democracy, now also assumes that his orders need no legal formalities at all in order to be obeyed by the entire nation.

We’re talking about that part of the monocratic decision that serves to punish not X, or Elon Musk, for having disobeyed a manifestly unfair order, but the entire Brazilian population. And not just the tens of millions who have accounts on the social network, but everyone else who can read what is published there. Not happy with blocking the social network, Moraes banned all Brazilians, under penalty of paying an unreasonable fine of R$ 50,000 (around US$ 9,000) daily, from using VPNs (software that camouflages the physical location of a device) to access X or make posts on the network.

A glaring obviousness in any judicial process is the need for the target of the decision, subpoena or injunction to be judicially notified and made aware of the decision; only then can it take effect and any deadlines for appeals begin to run. Will all 210 million Brazilians receive a visit from a tipstaff who will warn them about the ban on accessing X with a VPN? Or is that now unnecessary, as if Moraes’s mere signature had the power to make an entire country formally aware of his orders? Not even the most totalitarian dictators had this pretension of a direct channel between themselves and the minds of all their subjects, but Moraes’s megalomania is such that the justice thinks he is the center of the nation’s attention. And in such a way that any act of his would necessarily and immediately come to the awareness of all Brazilians, wherever they are, whatever they do.

How can we expect millions of people to obey a court order of which they have not been notified, in a process to which they are not parties? But that’s exactly what Moraes is hoping for

Furthermore, the presumption is not just for general obedience, but for general and immediate obedience. Let’s suppose, for the sake of the argument, that Congress had published a law determining exactly what Moraes ordered. Most likely, such a law would be promptly overturned by any sensible judge in a diffuse control of constitutionality, so many are the democratic guarantees that such a ban would violate, such as freedom of expression and the right to information. But supposing there were no such sensible judges and the law remained in place, there would at least be a period, called vacatio legis, for the population to learn about the new rule and be prepared until it came into force. This too was summarily eliminated by Moraes, and Brazilians have to obey him, even without formal notice of the decision.

All this, it must be remarked, without the 210 million Brazilians even being a party to the lawsuit filed against X and Musk. It is imperative, here, to become aware of the complete absurdity that is underway. Here we are not in the field of the (important) philosophical discussion about civil disobedience or the morality of following unjust orders, or about the example of Gandhi, Rosa Parks, Martin Luther King or the Dutchmen who hid Anne Frank’s family. The question is of a different nature: how can we expect millions of people to obey a court order of which they have not been notified, in a process to which they are not parties? But that’s exactly what Moraes is hoping for. It’s the total cancellation of the minimum rules of procedural security, it means several centuries of retrocession – it’s the total mess.

And the paradox is the immediate contrast, the blatant contradiction between this aberration and another decision that Moraes had just made in the very same case. In the early hours of Friday morning, hours before Moraes ordered the suspension of X, when analyzing an appeal by Elon Musk’s social network against the orders to censor profiles, the minister voted not to hear the appeal – in other words, not even to examine its merits. His argument? He stated that X was not a party to the case, but a mere executor of the removal orders; the parties were only the owners of the censored profiles, and only they could appeal. If so, how is it possible that Moraes is imposing an obligation on all Brazilians – not just those who have accounts on the network, but everyone else who can read what is published there – who are not listed in the lawsuit? It’s possible because, in Brazil, procedural codes have been abolished; what counts is only the will of Moraes, who uses the codes when convenient and discards them when not.

We have complete chaos, in which a Supreme Court minister imposes an “obligation not to do” on all Brazilians; he wants everyone to follow a court decision of which they have not been notified, in a process to which they are not parties; and he also says that they must do so immediately

In short, we have complete chaos, in which a Supreme Court minister imposes an “obligation not to do” on all Brazilians, which could only be done by law, as stated in Article 5(II) of the Constitution (“no one shall be obliged to do or refrain from doing anything except by virtue of the law”); he wants everyone to follow a court decision of which they have not been notified, in a process to which they are not parties; and he also says that they must do so immediately. There are so many absurdities that only the deep sickness that afflicts present Brazil explains the slackness towards this order. While some hide behind a hyper-legalism that preaches blind obedience to any absurdity that comes from a court, voices that were once much more emphatic are fading.

The Brazilian Bar Association, for instance, almost apologized to Moraes for asking for “clarification” about the fine for using VPNs – the ban wasn't even questioned – in a lukewarm note. The organization that was once at the forefront of the fight for democracy and the rights of Brazilians could and must be much more emphatic at times like this, and its weakness is only not a complete disgrace because many others, including a good part of the media, opinion formers and the political class, have chosen to silence or, even worse, to support Moraes.

The abnormality is so great that, after Moraes’ ban, even the Superior Electoral Court made publications on X, who knows how – publications that will only achieve their goal if Brazilians resort to disobedience. Are the justice and his henchmen aware of this? Or will they decide to monitor all Brazilians (probably having to resort to the same expedient prohibited by Moraes)? Totalitarian madness has set in and the entire nation should be rising up against it right now. The next few days will show whether society really wants to live in a democracy or whether it will accept submission to judicial mess in which anything goes but the law.