I hope non-Brazilian readers will forgive me, but I could not find a better expression to summarize the current situation of the Brazilian Marco Civil da Internet. “E agora, José?” The expression can be translated into English as “What now, José?”, and is quite popular in Brazil, having its origin in a famous poem by Carlos Drummond de Andrade (1902-1987). Although it might carry different meanings, this expression is mainly used in hard times, when people are challenged by a situation in which desirable or ideal solutions just seem impossible. When puzzled by a conundrum, one might say: “E agora, José?”.
Here I will try to explain why I do think that the Marco Civil is facing such a situation. But first, we need some background.
Marco Civil background.
Marco Civil is the Brazilian regulatory framework to the Internetin Brazil. It was initially developed as a “Bill of Rights” by the initiative of the Ministry of Justice in partnership with FGV Law School having strong participation of CGI.br (Brazilian Internet Steering Committee).
The drafting of the document was quite open to multiple stakeholders; in its first phase, the project received more than 800 contributions through the website [port] launched for this purpose. In the second phase, the draft was discussed in public debates and meetings that occurred throughout the year 2010 until it was formally presented as a law project to the House of Representatives in August 2011.The first version of the Marco civil has been widely recognized as a result of a truly open and collaborative process; a model that should be followed by other initiatives in the field of technology governance.
If approved, an important achievement of Marco Civil would be the enforcement of principles 6th and 7th from CGI’s list of principles: network neutrality and unaccountability of the network. These principles are strongly supported by civil society organizations that promote internet freedom. Unfortunately, the vote on the law project has been constantly postponed ever since it was presented two and half years ago. Telecommunication companies have been lobbying against the “net neutrality” principle and communication conglomerates were trying to include notice-and-takedown mechanisms. The House of Representatives has alleged “lack of consensus”, in order not to vote on the project.
Right after Snowden’s revelations about NSA spying on Brazil, President Rousseff gave special attention to the project that became a “constitutional priority”. This means that any other law project cannot be voted until the voting of the Marco Civil. Finally, it seemed that the problem would be solved with the Executive Power pushing forward the approval. But the Telecom lobby is showing its power of influence and the result is that the House of Representatives agenda has been blocked since October 2013. Even worse: in the Government’s effort to convince the opposition and construct alliances inside the House of Representatives, the project has suffered some important changes that lead us now to the situation “E agora, José?”
Marco civil problematic changes:
The first important (and controversial) modification is an amendment requiring that all data collected locally about Brazilian citizens and companies must be stored in Brazil. This amendment was made in November 2013 within the context of Snowden’s revelations and might be understood as a measure to preserve Brazilian citizen’s privacy against espionage and surveillance attempts. In this perspective data collected (thus stored) in Brazil would be protected under the country’s legal framework. But the measure is technically inefficient against espionage and, besides, raises several questions about its actual feasibility [port]. In fact, it is clear that this amendment goes against the very international nature of the Internet which is recognized by the Marco Civil itself.
Other two versions of the Law Project have been released after that, the first one in December 2013 and the second one a couple of days ago, on February 12th, 2014. The changes made are causing strong reactions from civil society organizations especially the ones that have heavily contributed in its first phase. In short, the current version of the Marco Civil establish that internet application providers “who exercise their activities in an organized, professional and economic way” must retain the access records during the period of six months, with the possibility to extend this period in the case of court order or public prosecutor’s requirement.Within the original version, that modality of data retention was optional and should be restricted specifically to the application provided. Now, some analysts [port] are arguing that the application providers may also retain the user internet connection records (like connection time, duration and location). Then, the Marco Civil has become less efficient in protecting privacy, what is clearly a step back happening in the moment in which the European Union Court states that data retention constitutes a serious interference with the fundamental right of citizens to privacy.
Another modification in the text is allowing the mechanism of notice and takedown with regard to contents of sex and/or nudity. The intent would be to protect the privacy and intimacy of people that inadvertently have had their own intimate images published on the web. But the way in which the article (22th) was originally written in the version of December/2013 has opened up the possibility to any person (not only the ones that have had their intimacy violated) to complain and take down contents with sex and nudity. This way, reasons such as moral judgments or religious beliefs could operate as motivation to take down these contents and consequently violate the freedom of expression. This concern was widely expressed by civil society organizations but it seems that the problem was already solved once the article’s redaction was improved in the latest version of the Law Project (Feb/2014).
The last modification that I would like to highlight here is a tricky one. The “business model freedom” has been introduced as a principle of the Internet use in Brazil. Apparently, this principle was introduced only to please the Telecom Industry by assuring that they will be able to keep their current billing practice of charging users according to different packets of access speed. The network neutrality principle, then, would not affect this current business practice. This would be the only concern of the Telecom industry against the net neutrality principle, at least as officially expressed. By solving this problem, the Marco Civil would be ready to get the approval in the House of Representatives, beating the Telecom lobby and keeping the network neutrality principle. This seemed to be the strategy adopted by Alessandro Molón, the project redactor in the House of Representatives. But the thing is that the inclusion of the “business model freedom” may open a battle of interpretation about what the network neutrality principle is as well as its scope and limitations. It might be a flaw in the law that threatens the net neutrality principle giving to Telecom firms the opportunity to challenge it in court.
These backward steps in the Marco Civil text have undermined the support from activists and civil society organizations, what must be seen as a serious concern.A couple of days ago, right before the release of the Law Project latest version,a group of organizations that have strongly collaborated with the Marco Civil construction have published an open letter [port] pointing out these problems and suggesting solutions. With the exception of the redaction in the article 22th, none of those problems have been addressed by the new text. Consequently the group no longer supports the law project, at least in the way it currently is.
I guess that the virtue of the Marco Civil – its power against political and economic interests that want to keep the internet under restrictive control – comes less from its content than from the process through which it was built. The text is a consolidated product of this process. Hence each change in the text that goes away from its original proposals undermines its support from civil society and points out to a dangerous path.
E agora, José?
This is the hard situation that the Marco Civil and its supporters are facing: by seeking the approval by the House of Representatives, the project risks losing its singularity. It is the result of a truly open collaborative process to which ordinary people, civil society organizations and firms had the chance to contribute. But now it has been changed by going through the traditional political process and it may lose its collaborative meaning. The early stage participants are fighting back and the end of this battle remains open. The following days will be decisive.
Perhaps we may understand this frame as yet another sign pointing out to the representation crisis of traditional politics. It comes alongside with the multivariate street protests that are taking place in Brazil at least since last June. Furthermore, this is a challenge not only faced by Brazilian democracy. I would even say it is one of the main reasons why the Marco Civil experience has taken considerable international attention. It is a pioneering initiative of constructing a “Bill of Rights” to the Internet in a collaborative fashion. The result and the experience of this initiative, alongside with the Global Multistakeholder Meeting on the Future of Internet Governance to be held in São Paulo (Brazil), may help frame the crisis and its possible solutions.