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Today marks seven years since the death of prosecutor Alberto Nisman, found dead in his Puerto Madero apartment hours before he went to the National Congress to present the complaint he had filed against several public officials for covering up the attack on the headquarters of the AMIA. We all know the details of the case. The investigation into the death of the prosecutor is still open and without a judicial resolution.

The case once again puts on the debate table, among other things, the importance of the “content” and “metadata” of WhatsApp messages, as evidence for the prosecution, for the clarification of facts subject to judicial investigation.

WhatsApp is an instant messaging application universally used by Argentines together with more than 2 billion people in the world who are mostly unaware of the privacy policy applied by the app.

This company was acquired by Facebook Inc. in 2014 for the sum of 22,000 million dollars, which, since the Cambridge Analytica scandal, has been holding criminal charges to try to guarantee the privacy of the services it offers, however it has been fined, in several times, in the European Union and in the United States, due to privacy failures. Even in Argentina, on January 5, the National Directorate for Consumer Defense and Consumer Arbitration applied a fine of five million pesos to Facebook Argentina SRL, a company controlled by Facebook Inc, for the incorporation of abusive clauses in the WhatsApp privacy policy and terms of service, in its latest version.

Let us also remember that WhatsApp messages and the possibility of their use in court, as evidence, apply to any type of criminal investigation and/or civil trial that can range from acts of terrorism, drug trafficking and pedophilia cases to acts typical of the ordinary citizen such as, for example, the emptying of the conjugal society by diverting money to a company offshore, situations of infidelity, cases of “sextortion”, even labor conflicts.

Unfortunately, in Argentina we do not have a specific regulation that has expressly included and regulated this means of proof, both in the Code of Criminal Procedure and in the Code of Civil and Commercial Procedure of the Nation. However, the jurisprudence has advanced in its consideration, both at the international and local levels.

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Now, regarding the content of the messages (the message itself), WhatsApp adopted, as of April 2016, the so-called “end-to-end encryption” which, in Creole, means that no person, including the company itself, You can access the text messages, voice messages, videos and/or photos that we send to our contacts. Encryption supposes the inviolability of communication, a term that is certainly difficult to sustain in a virtual reality where insecurity prevails. In other words, if we trust the word of the company, no one would be able to access our messages.

Alberto Nisman passed away in January 2015, when end-to-end encryption did not exist. At the time, the current WhatsApp privacy policy stated, in relevant part, that “…WhatsApp does not copy, retain or archive the content of messages that have been delivered through the WhatsApp service in the normal course of business. ..”

The phrase “in the normal course of business” allows for an ambiguous interpretation (what would be the normal course of business?) as to whether the content was (or was not) actually kept and eventually recoverable by the company, at its sole discretion. , although, according to said privacy policy, if the message was not delivered within 30 days of sending it, it was deleted from their servers.

Like all of us, I am unaware of the scope of the judicial investigation in the case of Dr. Nisman, but perhaps the collaboration of WhatsApp with the local justice could have allowed the content of several messages from people related to the case to be revealed.

However, even in the event that the “content” of a message cannot be recovered because it is encrypted, the so-called “metadata” (non-encrypted information) of the users of the subject app could be obtained through a court order. to judicial investigation.

The “metadata” is the equivalent of what is written on the outside of an envelope, that is, the names and addresses of the sender and recipient and the stamp (postal stamp) that reflects where and when the letter was sent while the “content” is what is written inside the letter.

WhatApp could then inform the intervening judge, the telephone number associated with an account, the ID and IP address of a mobile phone, the approximate location of the corresponding cell phone, the language and time zone, the user’s profile picture, the telephone operating system and data on outgoing and incoming messages, among others, information that, together with other means of proof, could validly constitute a serious, precise and concordant presumption to be considered in court.

In the United States, WhatsApp has shared metadata and unencrypted records with the Department of Justice in different judicial investigations, such as in the case of Natalie Edwards, a former official of the United States Department of the Treasury, who was sentenced to six months in prison for leaking reports. bank accounts on suspicious transactions to a BuzzFeed News journalist, according to an interesting report published in September 2021 by the NGO ProPublica, which analyzes content moderation by WhatsApp. A similar criterion could be applied to the ongoing judicial investigations in our country.

In conclusion, in a present like the one we live in, digital evidence is essential to define any judicial investigation, which requires adequate training for local justice, responsible legislative work that updates local procedural rules and the definitive, serious and diligent cooperation of technology companies such as WhatsApp to clarify cases of undoubted public repercussion such as that of prosecutor Alberto Nisman .

Alawyer and consultant specializing in Digital Law, Privacy and Personal Data; director of the Executive Program in Law and Digital Communication of the School of Politics, Government and International Relations of the Austral University; professor Faculty of Law UBA


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