Brazil’s Authoritarian Rise

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<div>Brazil’s Authoritarian Rise</div>

Alexandre de Moraes

By David Agape

With research assistance from Leandro Souza

Executive Summary

The investigation below reveals how ministers of the Superior Electoral Court (TSE) in Brazil, particularly Alexandre de Moraes, have acquired substantial powers in the country over a few years. Without a law equivalent to the American First Amendment, which guarantees freedom of speech and press; coupled with a population heavily engaged in social media and a corrupt and weak power structure – enabling the rapid creation of state bureaucratic systems when it suits the interests of the ruling class – Brazil presents an ideal environment to serve as a laboratory for implementing censorship practices.

 Brazilian intelligence entities — such as the Brazilian Intelligence Agency (ABIN), a civilian body affiliated with the Federal Government, tasked with gathering and analyzing information to inform the state’s strategic decisions — along with international counterparts like the FBI, have been instrumental in developing the TSE’s preliminary strategies to counteract “disinformation” within the nation. This participation indicates the global reach of the Censorship Industrial Complex. These diverse institutions are interlinked, collectively progressing agendas that aim to curtail freedom of expression.

Differences between the Judicial Systems of Brazil and the US

In Brazil, the Supreme Federal Court (STF) serves as the final appellate court for civil and criminal cases, adjudicating issues of constitutional significance and striving for the harmonization of interpretations related to the Federal Constitution. Although this role resembles that of the American Supreme Court, it is crucial to note that this similarity is only superficial, given the distinct power structures of each country.

The United States has a decentralized federal structure, which is also reflected in its judicial system. Each state has the autonomy to define its laws, while the Supreme Court is responsible for arbitrating conflicts between federal entities and dealing with matters of federal scope. Conversely, Brazil exhibits an extremely vertical hierarchy of power, with limited room for more local decisions, including in the judicial sphere. This means that issues like the arrest of a drug dealer, which in the United States would be resolved locally, might escalate through the courts to be judged by the STF, thus amplifying the power of this court.

Another peculiarity is that, unlike the United States, where the electoral system is managed by the judiciary, in Brazil, the electoral process is administered by an independent bureaucratic structure: the Superior Electoral Court (TSE). The TSE is responsible for conducting, overseeing, and coordinating elections in the country, based on laws passed in Congress or internal decisions. Thus, the TSE represents the highest authority regarding elections, with the responsibility of deciding all matters related to this theme.

The Beginning

Throughout its more than 90-year history, the TSE has undergone many transformations and challenges, such as the various periods of dictatorship in the country. However, the most significant transformation of the TSE occurred around mid-2017, when the court experienced an authoritarian escalation. At this time, the ministers voiced deep concerns over the potential replication in Brazil of events analogous to those of the 2016 United States elections — specifically, the election of Donald Trump amidst allegations of Russian interference and the widespread dissemination of fake news.

 In a proactive response, the TSE convened the “1st Internet and Elections Forum” on December 7, 2017. This forum was principally aimed at addressing the digital challenges anticipated in the forthcoming 2018 Elections. It was a gathering that saw participation from both civil society organization representatives and TSE delegates. Central to the discussions were the proliferation of fake news and the employment of bots in the electoral process. Gilmar Mendes, in his address at the forum, highlighted the American, French elections, and Brexit as quintessential examples of the pernicious effects of rumors, factoids, lies, and the phenomenon of post-truth.

 Coinciding with the “1st Internet and Elections Forum”, the TSE also instituted a specialized council. This body was tasked with conducting research and formulating strategies to refine electoral regulations, with a specific emphasis on the influences of the internet and social media in elections. The council’s meetings facilitated a synergetic dialogue among experts, media outlets, fact-checking agencies, and digital platforms, all converging with the TSE.

As divulged by minutes that were once confidential, the council’s nearly ten sessions consistently featured the participation of agents from the Brazilian Intelligence Agency (ABIN) and the intelligence sector of the Brazilian Army. In addition, TSE ministers, public prosecutors, and social network representatives were regular attendees. The involvement of the Army in these deliberations was a particular point of concern for Jonas Valente, a member of the Directorate of the Intervozes Collective, as expressed in his discourse at the TSE forum.

 A notable session, the fifth meeting of the Council held on March 5, 2018, included the presence of FBI agents — a special agent, a Cyber Operations supervisor, and a Department of Justice agent specializing in counterespionage to thwart foreign interference. They shared insights into the efforts of the United States Department of Justice and the FBI in the battle against “fake news”. Deji Okediji, a representative from the U.S. Embassy, was also in attendance.

These agents detailed the collaborative endeavors of the FBI and the Department of Justice with social media platforms to pinpoint and eliminate deleterious content.

Examples illustrate the FBI’s commitment to ensuring that freedom of expression is upheld, even in extreme cases such as Nazi political propaganda, with a focus on advising against controlling the content disseminated.

The Foreign Agents Registration Act (FARA) of 1938, which neither prohibits freedom of expression nor the dissemination of information and does not regulate the content of speech, was enacted in response to Nazi political propaganda activities by Germans in the United States. Under FARA, agents representing foreign leaders are required to furnish specific information to the U.S. government, including details about their affiliation with the foreign entity and any financial compensation received.

 The FBI is charged with maintaining copies of these submissions for future public access. This includes:

  • A detailed description of the agent’s relationship with the foreign leader and the activities undertaken;

  • A disclosure of the sources funding and promoting the variety of information disseminated (including payments and expenses);

  • A conspicuous cataloging of the informational materials;

  • Biannual supplementary records.

 FARA’s primary objective is to safeguard freedom of expression. Hence, even if the information shared is erroneous or harmful, it is not suppressed. Instead, regulatory bodies focus on tracing the information’s origin. They aim to identify the actors behind the news and reveal their motivations for such actions. The emphasis is on enhancing the transparency of the process rather than on controlling the content that is disseminated.

They also highlighted the significance of international collaborations in addressing these challenges, expressing a willingness to cooperate with Brazil. This included the potential development of partnerships and joint strategies, as well as sharing knowledge and effective techniques to combat disinformation and safeguard the integrity of elections.

A key topic discussed in these meetings was the expedited blocking of accounts on social media platforms, aimed at curbing the spread of false information and electoral manipulation. The discussions included exploring international standards that could guide the TSE’s decisions. Safernet, an NGO focused on defending and promoting human rights on the Internet, presented at the second meeting a report by First Draft on categorizing fake news. They proposed a system enabling users to easily report suspicious or illicit content to the TSE.

The Getúlio Vargas Foundation (FGV), a private Brazilian higher education institution ironically named after a Brazilian dictator, suggested implementing an API (Application Programming Interface) for data collection and analysis. The concept involved creating a system to monitor and analyze information spread across social media, including identifying suspicious patterns and content analysis to detect potential manipulation or disinformation during the electoral process. FGV also proposed creating a registry of websites, where sites approved by the TSE would be officially recognized. Effectively, FGV was suggesting the creation of a “blacklist” for sites not approved by the TSE.

According to Estêvão André Cardoso Waterloo, Secretary-General of the Superior Electoral Court (TSE), in an interviewwith Correio Braziliense, the initial intention was to map the phenomenon of fake news and identify institutions capable of collaborating with the TSE to address this issue.

Initially perceived as a prudent response to increasing concerns about election integrity in the digital age, this TSE initiative raised significant questions. Minister Luiz Fux of the TSE, for instance, inquired about how American agencies manage fake news without infringing on freedom of expression. However, this council marked the beginning of a broader movement to exert control over social media. Notably, the TSE initially intended to keep the meeting minutes confidential until 2023, but due to protests from legal experts, this secrecy was lifted on May 24, 2019.

At the “1st Internet and Elections Forum”, Alexandre Sankievicz, Professor at CEDIS/IDP, emphasized, “Internet use problems cannot be solved through criminalization. Maintaining Internet principles is essential. Removing content from the Internet should not occur without a judicial order, and the decision should not be left solely to platforms. Solutions must not infringe upon freedom of expression. The TSE would be unable to monitor all content, and a more interventionist approach could lead to the TSE being used for political persecution and censorship.” This concern was reflected in the subsequent actions of the TSE. 

Post-Elections

Following Bolsonaro’s victory in the 2018 elections, a narrative emerged alleging that Bolsonarist businessmen had engaged in mass messaging on WhatsApp. This narrative served as a pretext for the initiation of a Congressional CPI in September 2019, known as the Fake News CPI. Concurrently, there was a stir in the judiciary.

The 2018 election landscape was shaped by the Lava Jato investigations. Lula was imprisoned, and Bolsonaro’s election was partially due to his anti-PT rhetoric. Lava Jato implicated politicians and business leaders in a vast corruption network. Until that point, supreme courts had upheld Lava Jato convictions, and some ministers even supported the operation. The phrase “stop the bleeding” surfaced, implying a national agreement involving the supreme court. Dilma’s impeachment was seen as an attempt to impede Lava Jato, an effort that ultimately failed. The expectation that Bolsonaro’s election might lead to a pullback of the operation also proved unfounded.

A turning point occurred with a secret Federal Revenue Service investigation into suspicious transactions by public agents, including relatives of Supreme Court ministers. Veja magazine, on February 8, 2019, reported on an investigation into the assets of Gilmar and Guiomar Mendes. – G1, Consultor Jurídico.

This revelation prompted the ministers to seek protective measures. On September 9, 2019, Alexandre de Moraes suspended Revenue Service procedures and removed auditors involved in the investigation of 133 taxpayers, including Minister Gilmar Mendes.

This Revenue Service investigation also inspired the proposal for a CPI to investigate the ministers, dubbed the Lava Toga CPI. Four days later, a request to initiate the Lava Toga CPI was filed, but it did not proceed as parliamentarians withdrew their support. By March 14, sufficient signatures were gathered for the CPI, although it never materialized.

The STF then began exploring alternatives to curb Lava Jato. One strategy was transferring cases related to election box 2 to the Electoral Court, potentially softening convictions. This approach faced strong opposition from Lava Jato prosecutors. Consequently, on March 14, Inquiry 4781 was initiated (also known as the Fake News Inquiry or the End of the World Inquiry) opened ex officio, it appointed Minister Alexandre de Moraes as the rapporteur.

Early actions by Moraes, including issuing search and seizure orders, signaled the beginning of the STF’s controversial, legally unfounded investigations. On April 13, Moraes censored a report involving Toffoli in corruption cases, sparking widespread condemnation from journalistic entities. Initially, the right-wing was not the target; Bolsonaro faced STF persecution only from 2020 onwards, hinting at a prior non-aggression pact. Just before the election, Bolsonaro’s son, Flávio, was investigated by the Federal Police in a “rachadinha” case, leading to speculations about Bolsonaro’s agreements with the STF to halt these investigations, as indicated by the sequence of events.

Covid-19 Pandemic

The emergence of Covid-19 in Brazil in early 2020 profoundly altered the political landscape. President Bolsonaro’s management of the pandemic drew intense criticism, including from within his own cabinet. The disagreement with his Health Minister over pandemic response strategies led to the latter’s dismissal on April 16, 2020. Adding to the turmoil, the Minister of Justice, Sérgio Moro, a former judge and key figure in the Java Jato operation, resigned on April 24. His resignation was a protest against Bolsonaro’s attempts to interfere in the operations of the Federal Police. Bolsonaro’s intention was to install Alexandre Ramagem, the then-director of Abin, as the head of the Federal Police, an appointment Moro viewed as a political maneuver for personal advantage. However, the appointment was blocked by STF Minister Alexandre de Moraes, following an injunction filed by the PDT. Disney Rosseti subsequently assumed leadership of the Federal Police, while Ramagem returned to his position at Abin until his election as a federal deputy in the 2022 electoral period.

The conflict between the STF and Bolsonaro escalated when the Court ruled that state governors and city mayors had the authority to implement their own Covid-19 containment measures, effectively reducing the Federal Government’s jurisdiction in this area. This decision prompted severe criticism from Bolsonarist groups, resulting in the inclusion of several of these groups in the Fake News investigations. As the inquiry’s rapporteur, Moraes became a primary target, assuming the roles of judge, accuser, and victim.

TSE’s Final Strike

In the aftermath of the 2018 elections, the TSE actively developed several mechanisms to augment its authority.

On April 24, 2019, the TSE conducted the International Seminar on Fake News and Elections. This event was attended by TSE ministers, including then Justice Minister Sergio Moro, and representatives from the FBI  (there is a bilingual book about the event with speeches from the speakers). The seminar also aimed to assess the impact of fake news on the 2018 elections. According to Rosa Weber, President of the Superior Electoral Court (TSE), the Court was taken aback by the sheer volume of fake news circulating on social networks before, during, and after the elections. Rogério Galloro, a former member of the Interpol Executive Committee, was one of the mediators. He is now the Director-General of the TSE’s Secretariat, overseeing various intelligence divisions within the TSE.

The IDP (Brasiliense Institute of Public Law) held a debate on July 18, 2020, focusing on the challenges democracy faces in the era of fake news. Participants included STF Ministers Luiz Fux and Gilmar Mendes, along with Senator Simone Tebet (MDB-MS). 

From Electoral Authority to Secret Service

On May 26, 2020, TSE President Minister Barroso restructured the tribunal via resolution 639. This restructuring included the establishment of the Special Advisory on Security and Intelligence. This advisory was later transformed into the Secretariat of Judicial Police on April 22, 2022. Disney Rosseti, speaking at the V National Meeting of Intelligence of the Judiciary in 2023, highlighted the necessity of an intelligence sector within the TSE due to increasing political polarization. He underscored the effectiveness of a lean intelligence team over a larger one.

 Further Initiatives by the TSE

  • On August 4, 2021, the TSE solidified its commitment to combating disinformation by making the “Disinformation Confrontation Program” a permanent fixture, as decreed in Ordinance TSE No. 510/2021. This ordinance was signed by the Court’s president, Minister Luís Roberto Barroso.

  • March 4, 2022, marked a significant step in this endeavor with the creation of the Special Advisory for Confrontation of Disinformation of the Superior Electoral Court (AEED-TSE). This advisory body is a key component of the Disinformation Confrontation Program, initially launched in August 2019 with a focus on the 2020 municipal elections and institutionalized as a permanent program in August 2021.

  • The National Front for Confrontation of Disinformation was established by the TSE on March 31, 2022, under Ordinance No. 318/2022. Its primary objective is to foster actions and events that enhance the credibility of Brazil’s electoral institutions in the public eye.

  • Minister Fachin announced that the Front would comprise a diverse group of authorities, employees, and volunteer collaborators from Electoral Justice throughout Brazil. This team, functioning under the Executive Commission, operates in alignment with the Special Advisory for Confrontation of Disinformation of the Superior Electoral Court (AEED).

  • AEED-TSE personnel have engaged in proactive monitoring, exemplified by their analysis of influencer Monark’s podcast to identify and assess critiques directed at the TSE. (Gazeta do Povo)

  • On May 18, 2022, TSE’s partners in the Disinformation Combat Program introduced various strategies and tools to assist the STF in its fight against disinformation. This included an innovative contribution from Fasius, an artificial intelligence startup, which provided the “TORS” app. This application, offered at no cost, is designed to filter court-related content from social networks, starting with Twitter, by using specific keywords. The app categorizes the posts as negative, positive, or neutral in relation to the STF. It’s notable that jurist André Ramos Tavares, appointed as a TSE minister just two weeks prior to the app’s introduction, is linked to a company affiliated with Fasius.

  • The TSE further augmented its resources against disinformation with the publication of the Basic Guide to Confrontation of Disinformation on August 18, 2022. The guide cites several sources, including Claire Wardle.

The Structure Created by Barroso, a mix of intelligence and police structure established by Barroso in the TSE paved the way for Alexandre de Moraes to subsequently create an internal secret service within the Court. Moraes actualized this in August 2022, through ordinances 833 and 946, forming the Intelligence Core. He endowed himself with comprehensive authority as president to determine the core’s operational methods, including meeting frequency, report production, information dissemination, and implementation of measures based on the intelligence gathered.

The Poder360 outletnews reports that Alexandre de Moraes found it necessary to establish an independent secret service, separate from Abin and the Brazilian Intelligence System (Sisbin), whose actions are significantly influenced by members of the Armed Forces. The TSE president’s objective was to prepare for potential threats to the electoral system, creating a direct communication channel between the Electoral Justice and state intelligence services, thereby ensuring the TSE’s independence from federal government-controlled organs.

Notably, the intelligence core remains active beyond the election period and operates without oversight from higher authorities, under the direct command of the TSE president. The broad and indefinite mandate of the core grants expansive powers to Moraes.

Ironically, in his inaugural address on August 16, 2022, upon taking over the TSE presidency, Alexandre de Moraes stated: “The intervention of the Electoral Justice, as previously affirmed, will be minimal, yet decisive, firm, and unyielding in curbing abusive practices or the dissemination of false or fraudulent news, particularly those cloaked in the cowardly anonymity of social networks, the notorious ‘fake news’.”

Sebastião Coelho retired from his position as a TJDFT judge and resigned as vice-president of the Regional Electoral Court of the Federal District (TRE-DF) in protest against Moraes’ presidency of the TSE. Coelho criticized Moraes’ inaugural speech, labeling it a “declaration of war against the country.”

 Events of October 20, 2022:

  • The TSE plenary chose to implement prior censorship in Brazil, ruling against the airing of “Who Ordered the Killing of Jair Bolsonaro?”, a documentary by Brasil Paralelo. This decision stands in stark contrast to the STF’s jurisprudence and contradicts the Federal Constitution’s ban on prior censorship. Despite condemning the return of censorship, Minister Cármen Lúcia voted in favor of the decision, a contradictory stance that symbolically marked the return of censorship in Brazil.  – o Bastidor, Poder360

  •  Gazeta do Povo gave voice to lawyers criticizing Moraes for hindering process transparency and limiting access to case files, available only in paper format in the minister’s office in Brasília.

On November 24, 2022, investigative journalist Diego Escosteguy published an article in O Bastidor praising the arbitrariness of Alexandre de Moraes, almost justifying it as being guided by a moral compass, which he uses to navigate the labyrinth in the fight against Bolsonarist barbarism. Even while lauding Moraes’ heavy-handed approach, he lets slip a significant point: “One need not look far, as O Bastidor had warned, to see the indiscriminate use of a TSE resolution to indefinitely suspend, without any trace of due legal process, the social media accounts of parliamentarians. All done in secrecy – but why? – and outside the electronic justice system, the PJe. The much-mentioned ‘militant democracy’ doesn’t seem to fit into the PJe”. 

Future Plans

 The year 2022 was marked by the election of Luís Inácio Lula da Silva, following his incarceration for 1 year and 7 months due to multiple corruption charges. Through a series of legal strategies at higher court levels, Lula was not only released, but also any allegations linking him to criminal activities, particularly in the press, were met with immediate censorship.

On October 18, 2022, in the lead-up to the second round of the elections, Lula’s lawyer, Cristiano Zanin, commissioned a dossier of social media activities of various public figures. This report indicated that there was a “disinformation ecosystem” composed of militants campaigning for Bolsonaro. A focal point of this narrative was the discourse surrounding Lula’s release from prison and a statement by a prominent leader of the First Command of the Capital (PCC), a major criminal faction, showing a preference for Lula’s election.

The report led to the indictment of 55 prominent figures, including Jair Bolsonaro, his sons, several journalists, digital influencers, and right-wing activists, along with 29 Twitter accounts and five Telegram channels. Zanin initiated legal action against these individuals through the TSE. The petition was overseen by TSE Minister Benedito Gonçalves, who endorsed the request and implemented widespread censorship measures against many of the accused. Presently, Zanin serves as a minister of the STF, appointed by Lula.

Satisfied with its 2022 outcomes, the TSE plans to expand its role in upcoming elections. This intention was evident at the “Unshaken Democracy” event in January 2024, where Moraes said: “Impunity does not equate to peace or unity. All those complicit in undermining democracy and attempting to establish a state of exception will be thoroughly investigated, prosecuted, and held accountable.”

  • On May 13, 2023, the OAB’s Special Commission on Digital Law proposed establishing a regulatory body for social networks. This proposition was forwarded to Orlando Silva (PC do B-SP), the rapporteur of the Fake News Bill. The commission, led by Laura Schertel Mendes, daughter of Supreme Federal Court Minister Gilmar Mendes, former TSE president, continues the TSE’s trend towards authoritarianism.

  • On November 22, 2023, the seminar “Disinformation in Elections: Approaches from Brazil and the European Union” was held. This seminar, a partnership between the Court and the European Union (EU) delegation in Brazil, discussed legislation to combat fake news, such as the Fake News Bill in Brazil and the Digital Service Acts – DSA of the European Union.

  • On December 19, 2023, the STF launched its strategic plan for the 2023/2025 biennium to combat disinformation. This plan aims to extend the judiciary’s authoritarian agenda, addressing social phenomena like hate speech and democratic contestation practices.  Initiatives to defend the democratic and constitutional order, a “positive agenda” promoting constitutional values and fundamental rights, the development of democratic culture, political pluralism, tolerance, and social peace are planned.

Recently, it was announced that the government’s intelligence core will emulate the TSE’s 2022 election model. This approach, championed by the new Minister of Justice, Ricardo Lewandowski (ex-STF), will focus on combating organized crime.