Brazil’s Internet Constitution: The Struggle Continues

by Tim Ridout on March 25, 2014

Congresso NacionalSince October 2013, the Brazilian Chamber of Deputies’ agenda has been locked up pending a vote on the hotly contested bill known as Marco Civil da Internet (Civil Rights Framework for the Internet), which is commonly referred to as an Internet “constitution”. The most contentious issues are data storage requirements, data privacy, and the principle of net neutrality. The legislation could be an important trendsetter as countries around the world struggle with the inherent friction between territorial legal systems and the borderless Internet.

The initial source of the legislative paralysis was President Dilma Rousseff’s decision to invoke “constitutional urgency” on Marco Civil in September, after revelations that the U.S. National Security Agency (NSA) spied on Petrobras. Through Brazil’s constitutional urgency process, the legislative chamber taking the bill under consideration has 45 days to vote on it before all other work must be halted, and with Marco Civil, that period expired at the end of October. Numerous competing interests and the centrality of the legislation in structuring Brazil’s Internet framework have made it difficult to forge further consensus.

In response to the NSA spying revelations, in November President Rousseff pushed for the inclusion of a new provision allowing the executive branch to require companies to store Brazilian user data on servers located in Brazil, arguing that it would protect Brazilian user data privacy. This would give the president the power to decree that tech companies such as Google, Facebook, and Microsoft ensure that data remains in sovereign Brazilian territory instead of scattered around the globe. But many fear that moves like this could lead to a “splinternet,” or a series of national Internets with differing digital rules and government controls, as countries like Malaysia, Indonesia, and India also pursue policies that require local data storage.

Although President Rousseff had claimed she would not budge on the issue of local data storage requirements, on March 18 the administration agreed to revise the provision as long as the use of Brazilian data remained subject to Brazilian law. However, there is still no answer to the question of how to impose national law on data that resides outside sovereign territory, but which regularly flows into the country—a dilemma with which many countries continue to struggle.

President Rousseff’s Worker’s Party (PT) and its coalition partner, the Brazilian Democratic Movement Party (PMDB), have differed strongly on local data storage as well as on net neutrality, which PMDB opposes. Led by Deputy Eduardo Cunha, the PMDB offensive against PT on Marco Civil has strained relations between these two largest parties in Brazil’s ruling alliance, with potential consequences for the October 2014 elections. Tensions recently reached a height in February, when Cunha and PMDB formed a blocão (big bloc) of eight government coalition parties in the Chamber, seeking to use Marco Civil as a bargaining chip to extract concessions from PT on unrelated issues, such as leadership posts in certain ministries.

As in the United States, Brazilian telecommunications companies oppose net neutrality because it prohibits offering faster data transmission speeds for content providers who pay a premium. Given what we know about the impatience of “netizens,” even marginally faster transmission speeds can offer a significant competitive advantage for content providers. This, in turn, can translate into huge profits for telecoms if they are allowed to prioritize specific data streams over others. It might also mean that start-ups, the creative community, and others without significant financial resources could be handicapped in the digital world.

An agreement in February between Brazilian telecom companies and the Rousseff administration kept net neutrality in the bill but allowed for greater freedom of “business models” and clarified that telecoms would be allowed to charge different amounts for faster overall Internet connection speeds without discriminating against content. However, Cunha (a former telecom executive) criticized the deal, and the issue of net neutrality within Marco Civil remains contentious.

Meanwhile, civil society groups have come out in strong support of net neutrality and in opposition to local data storage, as well as a provision inserted in December regarding the duration of data storage. The current draft of Marco Civil would require companies to store user data for at least six months, which could be accessed upon judicial request. Fears of how such powers might be used led some to argue that the law would lead to an intrusive capability in the hands of Brazilian law enforcement agencies.

As a result of these divergent views among multiple interest groups, the Chamber has announced plans to vote on Marco Civil on a nearly weekly basis since November, only to postpone them each time. Getting Marco Civil right is important not just for Brazil, but for the global Internet community, especially given Brazil’s growing role in the international debate over Internet governance. President Rousseff wants Marco Civil passed soon so she has a legislative victory going into October elections and to set the stage for April’s NetMundial Internet governance conference in Sao Paulo. However, it is more important to ensure that the law is well written and that the potential negative impacts to civil rights and the global Internet are thoroughly considered.

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