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The Battle for Control of the Internet in Brazil

Gustavo Gindre*. Brazil, may 2014.

Versión en español | Versão em Português

The Civil Rights Framework for the Internet emerged as a response to a bill presented by former Senator Eduardo Azeredo (Brazilian Social Democracy Party, or PSDB for its name in Portuguese) who, with the support of the Brazilian Federation of Banks, sought to criminalize a series of behaviors on the Internet and establish a  need to identify every logged in user. The first step of this process was the approval  of the Principles for the Governance and Use of the Internet in Brazil by the Brazilian Internet Steering Committee (CGL.br). The largest protest against a bill in Brazil’s history ensued, with thousands of messages alerting people to the need to ensure that their civil rights would be protected in the area of Internet use. The concept of a civil rights framework that could protect those rights emerged as a response to the idea that a law could criminalize Internet use. Never before had a bill been written based on such a large number of contributions from NGOs, unions, social movements, and citizens who were not connected to one another organizationally.

The bill underwent a long and eventful process in Congress and faced strong opposition from telecommunications and broadcasting operators (particularly Globo). These entities wanted to use the Civil Rights Framework to ensure that use of the Internet without legal authorization would be prohibited, and that contents that represented a breach of copyright law would be blocked. There was a major civil society campaign in favor of the Civil Rights Framework, with the Internet as its main mobilizing tool. Representative Alessando Molon of the Workers Party (PT) also played a decisive role in the process as the bill’s rapporteur.

Despite all of this, the most decisive factor in the fate of the framework was the Snowden case. Once it was revealed that even President Roussef had been spied on by the United States, the Brazilian government decided to request an emergency procedure for the approval of the bill. This meant that no other bill could be put to a vote before the Civil Rights Framework, thus preventing the passage of any other law until the matter was settled.

Negotiations carried out by Rapporteur Molon led to the elimination of criteria linked to copyright included in the bill. This diminished the resistance of broadcasters, thus isolating the pressure of telecommunications operators. However, a new problem put the approval of the bill at risk just as it reached the finish line. The congressional leadership of the Brazilian Democratic Movement Party (or PMDB), the country’s second largest political party, put pressure on the government by threatening to vote against the Civil Rights Framework. Furthermore, the government decided to use the Framework as a trophy in NETmundial (a UN event on the topic of Internet governance) and drove a very hard bargain by approving the changes to the government budget promoted by PMDB representatives, handing over positions in autonomous agencies and ministries. All of this isolated the party’s leadership and forced it to yield in favor of the Civil Rights Framework. It is likely that we never know exactly what was negotiated in order to achieve those results.

In this context, the bill was approved on March 25, 2014 with the vote in favor by all of parties except for the PPS. The government immediately pressured the Senate to approve the legislation as quickly as possible, and this occurred on April 22. The following morning, at the opening session of NETmundial, President Roussef signed the bill, which was then officially known as Law 12.965/2014.

Achievements of the Civil Rights Framework.

The Civil Rights Framework for the Internet is an important achievement of Brazilian society that can serve as a reference for other countries. It is based on three key issues for the future of the Internet: neutrality, liability and privacy.

Net Neutrality.

This is the heart of the Civil Rights Framework. It is expressed in Article 9 of the legislation, which establishes equal treatment of data packets “without distinction based on content, origin, destination, service, terminal or implementation.” Any potential “discrimination or degradation of transit” will be regulated by presidential decree following a ruling by the Brazilian Internet Management Committee (CGL.br) and the National Telecommunications Agency (Anatel) on the “essential technical requirements for the rightful provision of services and applications” and the “prioritization of emergency services.”

Therefore, following the approval of the Civil Rights Framework, telecommunications operators are forbidden from differentiating between Internet contents with the purpose of setting conditions that are more favorable for those who can afford to pay for the service.

Liability.

Article 18 states that connectivity providers are not liable for content created by potential users. Article 19 states that the provider of applications can only be hold responsible for content published by third parties if he or she does not remove this content after receiving a court order to do so.

Privacy.

The Civil Rights Framework seeks to establish a delicate balance between the need for privacy and the need for safe use of the Internet. Article 7, for example, states that the user must be informed about registration data and that personal information cannot be transferred to third parties and must be destroyed at the user’s request.

Article 13 states that the Internet provider must maintain its access database (like the IP) for a period of one year. This period can be extended only by court order. Article 14 guarantees that connectivity providers such as telecommunications operators may store any data regarding the services accessed by the user. The controversial Article 15 establishes that the service provider must keep the access database confidential for six months, and that this order maybe extended by a court order.

In relation to public security services, however, the Civil Rights Framework has an alarming exception which is stated in the third paragraph of Article 10. It allows “administrative authorities with legal jurisdiction to request survey data that provide information on individuals’ qualifications, affiliations and addresses in accordance with the law.” This opens a dangerous gap that could be used for espionage purposes by Brazilian security authorities.

The Future.

Once the law was approved, a second battle over the presidential decree regulating the concept of net neutrality began. Without the visibility ensured by Congress, and long after NETmundial came to a close, the telecommunications carriers lobby may strike again with all its strength to ensure that the achievements of the law are turned back in practice. As such, there is still a great deal of work to do.

 

*Specialist on Film and Audiovisual Regulations

Member of the Intervozes Group

Former Adviser to the Internet Steering Committee

Mestre in Communications

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