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Marco Civil Da Internet: The Devil in the Detail

DEEPLINKS BLOG
February 25, 2015

Marco Civil Da Internet: The Devil in the Detail

On April 24, 2014, Brazil’s President, Dilma Rousseff, signed Marco Civil Da Internet, a civil-rights based framework for the Internet which Brazilian activists have long fought. Dubbed the “Internet Constitution,” the law seeks to reinforce the protection of fundamental freedoms in the digital age. The law was developed through a participatory process, but not without getting caught in the traditional horse-trading of the legislative process, which resulted in several concessions. One of the most damaging concessions, fiercely opposed by digital rights activists, was a data retention mandate that compels the collection and storage of connections logs of any innocent individual.

Brazil is now in the midst of rolling out the Marco Civil’s secondary legislation, together with a comprehensive data protection law that will heavily influence how online companies and governments can treat personal data in the country. The Ministry of Justice has announced a public online consultation over these two pieces of legislation in the style of the Marco Civil’s process, where all the stakeholders can contribute to the development of the bills. These results of these consultations will determine how Marco Civil is enforced in practice, as Dennys Antonialli, executive director of InternetLab, an independent research center working in the fields of law and technology in Sao Paulo, explains:

"Both consultations intend to gather inputs about the way these laws should be shaped. Although Marco Civil establishes a number of rights for internet users in Brazil, many of its provisions still depend on further regulation, such as zero rating plans and limits for data retention. This is the time to voice concerns to policymakers and make sure they will be addressed properly. The same goes for the draft of the Data Protection Bill, which will serve as a baseline privacy legislation in the country and complement Marco Civil in various ways.”

(InternetLab’s weekly newsletters on the Brazilian consultation are a great resource for anyone attempting to keep up with the process, incidentally.)

If the data protection law passes Congress, Brazil will join more than 100 countries with privacy laws that restrict the collection, use, and disclosure of personal data. As of now, as with the United States, Brazil has limited sectoral laws in some areas.  More general data protection principles can be effective in protecting personal data, but successfully enforcing those principles, while reconciling them with other rights, including free expression, requires careful drafting, especially in a fast-moving digital environment.

Marco Civil in Practice: Net Neutrality

Another report issued by ARTICLE 19 Brazil analyzes how effective Marco Civil has been during its first six months of implementation. In its report, ARTICLE 19 draws attention to the "Whatsapp and TIM" network neutrality case. In 2014, the telecom company TIM (the Brazilian subsidiary of Telecom Italia Mobile), in partnership with Whatsapp, released a zero rating plan that allowed subscribers to use the app for "free,” meaning it would not drain subscribers’ data allowances. The zero rating proposal generated discussions about a possible violation of the net neutrality provision of Marco Civil. Marcelo Bechara, the counselor of the National Telecommunications Agency (ANATEL), believes the proposal is a matter of the free market, while others argue that the gratuity of the app generates an asymmetry in traffic (since many users will choose to use this particular app) thus limiting and inhibiting the emergence of new applications and innovations.

According to the InternetLab, the most discussed topic in the Marco Civil’s consultation is "Net neutrality". The main discussion involves "zero rating" plans and the following question: "Can the mobile operators perform this type of discrimination in favor of one application in spite of its competitors?” Join the discussion here.

Marco Civil in Practice: Anonymity

In Brazil, the Constitution prohibits anonymous speech. The intention behind the prohibition is to keep the possibility of identifying anyone who expresses any opinions, beliefs or comments, both in the online or in the offline world. Anonymity is crucial for the exercise of our fundamental freedoms, which makes it possible for individuals to express themselves freely and without fear of retaliation. By not allowing Brazilian citizens to engage in anonymous speech, the Constitution imposes significant obstacles to their ability to report abuses of power or express unpopular opinions. Nevertheless, that prohibition does not extend to the protection of privacy.

Limited by these significant Constitutional obstacles, the Marco Civil reinforces that freedom of speech is a foundational principle for Internet users in Brazil. However, this provision has to be construed under limitations imposed by the Brazilian Constitution, leaving very little room for interpretations that could allow anonymity for free expression purposes. Marco Civil also establishes that Brazilian law should be applicable to any products or services used by individuals located in Brazil. This provision has empowered public prosecutors and law enforcement officials to claim that the constitutional ban on anonymous speech should also prevent the use of Internet applications that allow anonymous expression.

A recent example of this restriction is the ban imposed to “Secret,” an Internet application that markets itself as a “safe place to say what’s on your mind anonymously.” Invoking the Brazilian constitution’s prohibition, the public prosecutor’s office brought a lawsuit against the service, which had quickly become extremely popular in Brazil. Although later overturned, an injunction was granted to ban “Secret” from online application stores (Google and Apple) in Brazil and to have it remotely removed from devices where it had already been installed.

This high-profile case points to a potential danger of broadening the scope of the constitution’s prohibition and applying it to prevent the use of privacy enhancing technologies, which would also bring undesirable repercussions to the rights of reading and browsing anonymously. (Check EFF’s policy paper on Anonymity and Encryption).

The Marco Civil remains one of the best-crafted and democratically debated expressions of rights online to acquire the force of law in the world. But it’s not the end of the story. Like every foundational document, from any Constitution to the Universal Declaration of Human Rights, the real challenges come in interpretation and enforcement. It’s up to Brazil’s engaged citizens to make sure that the law and upcoming legislation upholds the high standard its creators set.

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