April 25, 2014 | By Jeremy Malcolm and Danny O'Brien

Human Rights Are Not Negotiable: Looking Back at Brazil's NETMundial

At the start of her opening address to the NETmundial conference in Sao Paolo this Tuesday, Brazil's President Dilma Rousseff ceremonially signed the Marco Civil, Brazil's long fought-for Internet Bill of Rights, into law. Even as she did so, activists from the floor below waved Ed Snowden masks and banners protesting the bill's inclusion of a data retention mandate.

It was a prefiguration of the battle between high hopes, user rights, anti-surveillance activism, and the forces of compromise that would take place in this forum over the next two days.

Over a thousand delegates—from advocacy groups like EFF, companies like Microsoft, the governments of states from the U.S. to Russia, to technical Internet groups like ICANN and the IETF,  as well as videoconferencing citizens patched in from India to Argentina—took turns to make statements on the convention's main product, an "outcome document" that would describe the values and direction of Internet governance. After a day of the statements, the drafting committees of the document retired to a smaller room, equipped with snacks, alcohol and video projectors, where they began openly and publicly haggling over the details of the document, surrounded by crowds of eavesdropping delegates.

The intense monitoring of the drafters curiously mirrored the reason why such a strange mix of society had been brought here: the unchecked surveillance by the intelligence agencies of the United States and other governments, and the resulting challenge that spying has placed on the legitimacy of Internet governance venues like the United Nation's Internet Governance Forum.

President Rousseff's rousing attack on NSA spying last year at the United Nations's declared that it "affect[ed] the international community itself and demands a response from it." She called for the establishment of a "civilian multilateral framework for the governance and use of the Internet." Rousseff's plan was reinforced by a later meeting with ICANN's President Fadi Chehadé, the representative of the signatories of the Montevideo Statement, a collection of key technical groups associated with Internet governance, who had also expressed their concern that pervasive monitoring and surveillance undermined "the trust and confidence of Internet users globally."

The result was NETmundial, a Internet-mediated event with invited attendees from numerous camps, including business, civil society, governments and the Internet's technical community.

The inspiration for NETmundial's process was that of Brazil's Marco Civil itself, whose text includes important new guarantees of freedom of expression, protection of privacy and personal data, network neutrality and openness. The law was initially drafted in a decentralized, collaborative process that used some of the Net's own organizational innovations. Its passage through parliament involved the same political wrangling as any law does, however, with the result that some unfortunate compromises were made—including the bill's Article 15, which now compels Brazilian ISPs and other Internet companies to retain their customers' communications data for a fixed period.

The result was a document that emphasized and reinforced human rights at its core, yet mandated a level of compulsory private data collection upon Brazilian citizen, even as Europe's highest court was rejecting similar EU legislation as being an explicit violation of human rights. Clearly the process of compromise works against the defense of human rights as well as protect them.

Unlike the Brazilian law, the text developed at NETmundial was not meant to be a law, but a set of non-binding international principles along with a roadmap for future developments of the Internet governance ecosystem. The original text was ambitious in its scope, including sections on the application of human rights online, support for the open and distributed architecture of the Internet including open standards, and aspirations for how governance of the Internet should be made more democratic and inclusive.

But as with the Marco Civil, compromises quickly pockmarked the NETmundial outcome document.

Perhaps the most troubled areas were those on intellectual property, which prompted as ever a flood of comments on behalf of rights holders to the NETmundial online comment platform in the days leading up to the meeting, and intense lobbying by rights holders like MPAA, generally supported by Western governments, at the event. The fruits can be seen in the final text, where strong statements of unqualified human rights and shared values have been fenced in by rights holder terminology.

  • Freedom of information and access to information: Everyone should have the right to access, share, create and distribute information on the Internet, consistent with the rights of authors and creators as established in law.
  • Protection of intermediaries: Intermediary liability limitations should be implemented in a way that respects and promotes economic growth, innovation, creativity and free flow of information. In this regard, cooperation among all stakeholders should be encouraged to address and deter illegal activity, consistent with fair process.

The NETmundial document may not be binding, but the ability of right holder lobbyists in inserting language that has been previously been used to terminate users' Internet connections, commandeer ISPs to be the copyright police of their own customers, and censor and filter the Internet demonstrates just how swiftly even novel and apparently open deliberation of online rights can be steered into dangerous territory. While NETmundial was far more open than other lobbying venues, such as the ultra-secretive Trans-Pacific Partnership, the resources of big business to wordsmith away and influence drafters, compared to the relatively small ability for advocacy groups and individual net users to influence the process, still shows in the final text.

NETmundial's most re-iterated point, and ultimately its entire reason for existing—to make a strong statement against mass surveillance—was also diminished by the process. For all its commitment to transparency and openness, governments, including the United States government, had the last say in a closed meeting at the very end of NETmundial. Even before then, the targets of Rousseff's and the Internet technical community's ire set about weakening an initial strong draft document, as obtained by WikiLeaks before the public consultation.

The result is that while NETmundial's outcomes document softly condemns the practice of mass and arbitrary surveillance, it fails to point out to strong legal safeguards against unchecked surveillance practices, for example by reference to the Necessary and Proportionate principles, which were cited in the original version, and rather than calling for strong and immediate action, the text merely calls for a "review" of procedures and recommends that "more dialogue is needed on this topic at the international level."

For those hoping that NETmundial would provide a renewed validation of the multi-stakeholder process and show how it might combat concerted attempts to weaken the Internet's security and the rights of users, the result was disappointing. But Internet governance forums are not the only place where the surveillance state can be challenged. So many stakeholders, across all of NETmundial's interest groups, expressed their concern at mass surveillance, but what is important is what they do next. What practical steps will politicians take now to rein in their own out-of-control intelligence agencies, and put pressure on other countries? How determined are the Internet's technical communities to re-build the kind of decentralized, encrypted, end-to-end infrastructure that offers the Internet resilience to surveillance and censorship? Can private businesses change their behavior and relationship with government as their own data collection practices are used to violate the privacy of their own customers? Non-binding texts may be negotiable, but when it comes to fundamental human rights and the battle for a trustworthy, open, and secure Internet, there can be no compromise.

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