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Net Neutrality in Brazil

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Net Neutrality came into effect in Brazil on April 22, 2014, with the country becoming only the third[1] in the world to pass legislation for net neutrality, joining Chile and the Netherlands[1]. The legislation, which works in relation with Brazil's Brazilian Civil Rights Framework for the Internet, known as Marco Civil da Internet (Civil Rights for the Internet)(officially Law No 12.965), was signed by former Brazilian president Dilma Rousseff[2]. The bill barred telecommunication companies from charging higher rates for access to content requiring high bandwidth, while also holding companies accountable for the security of Brazilians' data even outside its own domestic borders, with those failing to comply subject to Brazil's laws and courts. The legislation also works against internet service providers in an effort aimed to protect both internet privacy and the guarantee of an open access internet without third party gatekeeping (communication) .[2]

Understanding Net Neutrality

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Originally derived in 2002 by Tim Wu, a now professor at Columbia Law School, Wu argued that the Internet should allow a level playing field for all content and be a non-discriminatory network. Network neutrality is the principle that internet service providers and the governments that regulate them should treat all internet traffic equally, meaning that users should be able to access all content freely regardless of its source, content, or destination[3]. This means that internet service providers should not be allowed to block, degrade access, or allow fast/slow lanes to specific content transferred over the Internet[3]. The non-discrimination that net neutrality stands for also includes internet service providers nondiscrimination to charge users differently depending on the content, platform, websites, etc. that they use. [3]

Types of Net Control

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Bandwidth Throttling

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Bandwidth throttling is the intentional slowing down of a user’s bandwidth by intentionally lowering the speed of a user’s internet connection. Bandwidth throttling can affect computers, smartphones, or other devices connected to the internet, along with websites or applications being used by a user. [4]

ISP's can throttle bandwidth from an individual site, or all types of traffic a user uses. For individual websites, an ISP may, for example, throttle the bandwidth of a user who downloads a large amount of data on a service such as Netflix. [4]

ISP's benefit from bandwidth throttling by decreasing the congestion over their networks which lowers the amount of traffic being processed at once. Bandwidth throttling save ISP's money by not needing to buy faster equipment to help their networks handle increased internet traffic on their networks. [4]

IP Address Blocking

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IP address blocking is the intentional blocking of a users access to a specific website or IP address by an ISP[5]. The practice is usually done to ban or block sites or hosts from entering a server[5]. In China, for example, sites such as Google, Facebook, Instagram, and other websites and applications are blocked due to internet censorship in the country.[6]

Internet Usage in Brazil

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As of January 2017, Brazil was the largest internet market in Latin America with 139.1 million users[7], with the second being Mexico at 76 million users[7]. As of June 2017, Brazil is the fourth largest internet market in the world, behind only China, India, and the United States of America[8]. In 2016, Brazil's average monthly internet usage by user was 25.7 hours, with 90% of Brazilian internet users accessing the internet everyday for personal reasons[9].

As of July 2017, Brazil has over 90.1 million social network users[10].

Marco Civil da Internet

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Coming into effect upon its passing by Congress on April 22, 2014[1], Marco Civil da Internet was formed to: "establishes the principles, guarantees, rights and obligations for the use of Internet in Brazil" (Article 1)[11].

Prior to the bills introduction, Brazil had "no internet or data protection regulation" existing to protect users online[12]. The bill was: "conceptualized through partnership between Barzilès Ministry of Justice, and the Center for Technology and Society of the Law School at the Fundação Getulio Vargas"[13], who started working on Marco Civil da Internet in 2009[13] as a crowd sourced legislative proposal[12].

The basis of Marco Civil da Internet focuses on several principles which are outlined by thirty-two points, issued in five chapters[11]:

1) Preliminary Provisions;
2) Rights and Guarantees of the User;
3) Provision of Connection and Internet Applications;
4) The Role of Public Authorities; and
5) Final Provisions.

The bill, in short: "translates the principles of the Brazilian Constitution to the online world".[14]

Brazilian Public Involvement

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Marco Civil da Internet's development allowed an "open public process"[15] where citizens were invited to voice their suggestions and concerns to the bills earliest draft by using an open online platform[15]. Between 2009 and 2010, nearly 2,000 Brazilian's participated in offering their suggestions and concerns, with the bill using the online platform to use the public's suggestions and concerns into its final draft[15].

Allowing an open online platform where citizens could voice their concerns and suggestions was attacked by a number of industries in Brazil[15]. In November 2012, lobbyists seemed to have "killed off" Marco Civil[16]. Brazilian's used the: "#EuQueroMarcoCivil ("I want Marco Civil")" as a hashtag on social media to express their digital activism, and in Brasilia, Brazil, supporters used: "signs, t-shirts, and other creative methods"[15] to have their support of the bill heard[15].

Support from Tim Berners-Lee

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Tim Berners-Lee,whom is the: "founding director of the Web Foundation and inventor of the World Wide Web"[17], offered his support of Brazil's Marco Civil da Internet in 2014 just prior to the bills passing in a post on the World Wide Web Foundations webpage following the celebration of the World Wide Web's 25th anniversary[17].

Berners-Lee stated: "If Marco Civil is passed, without further delay or amendment, this would be the best possible birthday gift for Brazilian and global Web users. I hope that by passing this Bill, Brazil will cement its proud reputation as a world leader on democracy and social progress and will help to usher in a new era – one where citizens’ rights in every country around the world are protected by digital bills of rights.

Like the Web, Marco Civil has been built by its users – the groundbreaking, inclusive and participatory process has resulted in a policy that balances the rights and responsibilities of the individuals, governments and corporations who use the Internet. Of course, there is still discussion around some areas, but ultimately the draft Bill reflects the Internet as it should be: an open, neutral and decentralized network, in which users are the engine for collaboration and innovation. Commendably, the Bill has among its foundations the guarantee of human rights such as privacy, of citizenship and the preservation of the diversity and the social purpose of the web.”[17]

Impact of NSA Snowden leaks

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Coming into force upon its sign off from Congress on April 23, 2014, the civil law on Internet rights was: "the first legislative step in a major diplomatic and technological push...to increase domestic cyber-security, reduce its reliance on US servers, and revise global governance of the internet in the wake of the NSA spying revelations" [18].

The legislation, although being worked on prior to NSA whistleblower Edward Snowden's leaked documents in 2013, was fast tracked following the events after the country realized that the US agency had been monitoring Brazilian president Dilma Rousseff's emails and phone calls, while also spying on Brazil's largest oil company Petrobras'[19] communications, and the communication of millions of Brazilians[18].

The Brazilian government following the Snowden leaks began to "upgrade and expand the country's communication infrastructure"[18] in order to limit its "reliance on U.S data centers"[18]. At the time: "internet and telephone data" passed through a "network access point" in Miami, Florida[18]. The government since the leaks in 2013 has been working to divert "its traffic elsewhere"[18], including laying fiber-optic cables to "African telecommunication hubs"[18], made plans to lay down fiber-optic submarine cables to: Nigeria, China, India, Russia, and South Africa, as well as: "negotiating a 10,000 km 'optical ring' that would directly link communication between 12 South American countries and Europe"[18].

Cases of Net Neutrality Legislation Used in Brazil: WhatsApp

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December 2015
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On December 17, 2015, a Brazilian court "ordered telecommunication companies"[20] in Brazil to block access to Facebook-owned WhatsApp "across the country for 48 hours"[20], due to the company’s: "failure to respond to two court orders"[20] set by the Brazilian government in July and August of 2015.[20] The case in question stemmed from: "a criminal case involving one of Sao Paulo's largest gangs which used WhatsApp in the commission of crimes".[21]

Facebook CEO Mark Zuckerberg stated on December 17, 2015 in a Facebook post about the issue that: “This is a sad day for Brazil. Until today, Brazil has been an ally in creating an open internet.”[20]

A Sao Paolo high court restored the service just 12 hours later, stating that: “[It] does not seem reasonable that million of users are affected due to the inertia of the company”.[22]

The ban left over 100 million Brazilian WhatsApp users with no communication on the app for the duration of the ban.[20]

May 2016
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On May 3, 2016, a Brazilian court ordered WhatsApp to be blocked across Brazil for 72 hours for: "repeated failures to comply with judicial demands to hand over private data"[23]. With the order, service providers were warned that failure to comply would lead to a fine of $142,000 per day.[23]

WhatsApp at the time introduced an: "end-to-encryption service for text, image, and voice messages"[23], meaning WhatsApp would not be able to access nor turn over any data "correspondence between users". [23]

July 2016
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On July 19, 2016, a Brazilian court ordered a block of WhatsApp across the country after WhatsApp: "refused to comply with a court order to reveal user information in a crime investigation"[24].The judge also ordered the company: "to pay $50,000 per day until it complied" with the courts request "to release the information". [24]

WhatsApp CEO Jan Koum stated in a Facebook post: "As we’ve said in the past, we cannot share information we don’t have access to." [24]

The ban was later lifted by a court ruling.[24]

Positives

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"Net neutrality requires that all internet traffic be treated equally"[25] and cannot be discriminated against due to its: "content, device, author, source or the destination of the content, service, or application"[25]. It prohibits the suspension or slowing down of packages or services, making ISPs unable to sell plans that would only allow specific applications to be sold (YouTube, Facebook, etc.)[25].

Democratic Standpoint

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Advocates argue the bill provides opportunity for Brazilians to provide "expression and community"[26], while allowing "business and political participation accessible to all regardless of income or geography"[26]. Advocates argue that the bill is a "model of democracy"[26] which recognizes that growth is: "dependent on an open, transparent, and technologically advanced society"[26].

Advocates argue that Marco Civil reinforces the idea that the internet is: "no longer an entity separate from society"[26], with the bill outlining this by interweaving ideas of: "human rights, education, governance, expression", etc. into its framework[26] . The bill highlights these points specifically in Articles Two and Three of the bill:

  • Article Two respects "freedom of expression", including: "human rights, plurality and diversity, openness and cooperation, free entertainment, competition and consumer protection".[11]
  • Article Three guarantees: "freedom of speech, communication and expression of thought, in accordance to the Federal Constitutions, protection of privacy, personal data, among other preservation's".[11]

Personal Data Protection

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Advocates note that the bill outlines a number of principles that work to protect user data[25], including:

  • "The principle of protection of personal data (Article 3, Paragraph III)"[25];
  • "The prohibition of the provision of personal data and electronic records of users, except with the consent of the same (Article 7)"[25];
  • "The obligation of service providers to provide clear and complete information to users about the collection, use, storage, processing and protection of their personal data, which may only be used for purposes that justify collection, are not prohibited by law, and are specified in the terms of use and contracts (Article 7)"[25];
  • "The user must expressly consent to the use of his/her personal data and the clauses should be highlighted in the terms of use and contracts (Article 7)"[25];
  • "The users will be entitled to the exclusion of their personal data at the end of the relationship, except for mandatory waits provided by law (Article 7)"[25]

Intermediary liability

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Marco Civil establishes that intermediaries can only be held liable for damages from user-generated content if they fail to comply with a reputable court order "demanding for the content to be removed"[27]. The bill, however, does not provide intermediaries with protection from copyright infringement[27], nor will intermediaries be exempt from liability in: "cases relating to sexual content"[28], whereby the intermediary can be held "secondarily liable for damages if failing to act upon user notification"[28]. Advocates argue that the bill serves as a "safe harbor for intermediaries"[28] in Brazil, arguing that the bill reduces "the amount of litigation exposure" and "uncertainty towards liability relating to take down requests made by users"[28].

Prior to Marco Civil's passing, Brazil had no specified law regulating intermediary liability[28].

Intermediaries, according to the Brazilian Superior Court of Justice, includes: "infrastructure providers, internet access providers, providers of hosting services for storage and remote access of information, information providers, and content providers that make available information created by information providers or by internet users"[13].

Negatives

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Foreign Service Providers

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Marco Civil da Internet in Chapter II Article 11 states that: "The established in Art. 11 applies to the data collected in the national territory and to the content of the communications in which at least one of the terminals is placed in Brazil".[11]

Critics argue that forcing foreign service providers such as Facebook, Google, and other providers to base their servers inside Brazil would: "reduce efficiency and could lead to a fragmentation of the internet"[18]. Ronaldo Lemos, director of the Institute of Technology and Society in Rio de Janeiro, stated that forcing foreign service providers to base servers inside Brazil can lead to the internet: "becoming less efficient and more influenced by protectionist sentiment"[18].

The push to have foreign service providers to base their servers in Brazil was one of Brazil's reactions to the NSA Edward Snowden scandal in order to protect both the country and its internet users information protection[18].

Reduced Foreign and Domestic Investment

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Marco Civil da Internet's provision to require: "Brazilian's data be stored on servers located in Brazil"[29] critics suggest will carry costs and reduce the amount of opportunities Brazil will see from foreign investors to offer their services to Brazilians[29]. Pedro Henrique Ramos, a lawyer and researcher at Brazil's Fundação Getúlio Vargas, argues that economically Brazil's "expensive servers would harm Brazilian companies by significantly increasing the already-high costs of doing business in Brazil"[29].

Critics also argue that the bills passing will lead to "domestic productivity losses...for economic sectors that use data as a production input"[12]. A research paper presented by ECIPE (European Centre for International Political Economy)[30] showed that the bills passing would: "decrease Brazil's GDP by -0.2% in 2014"[12].

Unclear points and actions

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Carlos Affonso Souza and Sergio Branco, both directors at the Institute of Technology and Society in Rio de Janeiro, argue that in relation to the WhatsApp temporary shutdowns in 2015 and 2016, the Marco Civil da Internet's acts did not clarify what acts of non-compliance with rules of the legislation were, and that the bill does not state that a: "whole service can be suspended due to its infringement"[31] with any "terms of service under the law"[31], as WhatsApp experienced[31].

Article 11 states: "In any operation of collection, storage, retention and treating of personal data or communications data by connection providers and internet applications providers where, at least, one of these acts takes place in the national territory, the Brazilian law must be mandatorily respected, including in regard the rights to privacy, to protection of personal data, and to secrecy of private communications and of logs"[11].

Article 12 states that: "the temporary suspension of the activities that entail the events set forth in Art. 11"[11].

WhatsApp at the time introduced an: "end-to-encryption for text, image and voice messages, meaning that the company wouldn’t be able to access any correspondence between users"[32], leaving room for error in the bill.

Record Retention and Criminal Investigation

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Critics argue that Article 13, which states that: "In the provision of Internet connection, the entity responsible for the management of the autonomous system must maintain the connection records, under confidentiality, in a controlled and safe environment, for the term of 1 (one) year, in accordance with regulation"[11], and Article 15, which states: "The Internet application provider that is duly incorporated as a legal entity and carry out their activities in an organized, professional and with economic purposes must keep the application access logs, under confidentiality, in a controlled and safe environment, for 6 months, as detailed in regulation" [11]provides controversy into the investigation of cyber crime[33].

The issue provides controversy due to internet users ability to perform illicit acts while using a false sense of anonymity to do so[33]. With this information only accessible through a court order, as stated in Article 10[11], the collection of such data, if it is kept by internet application providers (i.e. if it is used without economic or private purposes) can be lost due to the bill not stating it needs to be kept following this period of one year, which may hinder law enforcement ability to investigate "cyber crimes when internet applications are used without economic or private purposes"[33].

President's Ability to Regulate Exceptions

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Article 9 states that: "The discrimination or degradation of traffic shall be regulated in accordance with the private attributions granted to the President by means of Item IV of art. 84 of the Federal Constitution, aimed at the full application of this Law, upon consultation with the Internet Steering Committee and the National Telecommunications Agency, and can only result from:

  • I - technical requirements essential to the adequate provision of services and applications; and
  • II - prioritization of emergency services."[11]

The bill provides controversy as it grants the President: "the power to regulate exceptions to the rule for emergency services, or according to technical requirements"[25] at his/her discretion[25].

Works Cited

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  1. ^ a b c Walker, Lauren (September 10, 2014). "How is net neutrality working for the countries that have it?". Newsweek. Retrieved 9 November 2017.
  2. ^ a b Toor, Amar (April 24, 2014). "Brazil looks to protect privacy and net neutrality with Internet bill of rights". The Verge. Retrieved 9 November 2017.
  3. ^ a b c Lee, Timothy (May 21, 2015). "What is network neutrality?". Vox. Retrieved 9 November 2017.
  4. ^ a b c Fisher, Tim (July 21, 2017). "What is Bandwidth Throttling?". Lifewire. Retrieved December 5, 2017.
  5. ^ a b "IP Address Blocking". Technopedia. Retrieved December 5, 2017.
  6. ^ Furio, Fu (November 21, 2017). "The List of Blocked Websites In China". Sapore di China. Retrieved 5 December 2017.
  7. ^ a b "Number of internet users in selected Latin American countries as of January 2017 (in millions)". Statista. January 2017. Retrieved December 7, 2017.
  8. ^ "Countries with the highest number of internet users as of June 2017 (in millions)". Statista. June 2017. Retrieved December 7, 2017.
  9. ^ "How often do you use the internet for personal reasons?". Statista. June 2016. Retrieved December 7, 2017.
  10. ^ "Number of social network users in Brazil from 2015 to 2022 (in millions)". Statista. July 2017. Retrieved December 7, 2017.
  11. ^ a b c d e f g h i j k "Marco Civil Law of the Internet in Brazil". CGI.br. The Brazilian Internet Steering Committee (CGI.br). Retrieved 9 November 2017.
  12. ^ a b c d Verschelde, Bert (June 2014). "The Economic Impact of Marco Civil da Internet in Brazil" (PDF). European Centre for International Political Economy: 4 – via ECIPE.
  13. ^ a b c Zwiebach, Cecile (September 9, 2015). "Brazil's "Marco Civil" Law Has Added Clarity to Internet Liability". Nearshore Americas. Retrieved December 6, 2017.
  14. ^ de Souza, Carlos Affonso Pereira; Viola, Mario; Ronaldo, Lemos (2015). "Understanding Brazil's Internet Bill of Rights" (PDF). Instituto de Tecnologia e Socieadade do Rio de Janeiro. 1: 82.
  15. ^ a b c d e f Moody, Glyn (March 27, 2014). "Brazil's 'Marco Civil' Internet Civil Rights Law Finally Passes, With Key Protections Largely Intact". Techdirt. Retrieved December 6, 2017.
  16. ^ Moody, Glyn (November 27, 2012). "As Feared, Brazil's 'Anti-ACTA' Marco Civil Killed Off By Lobbyists". Techdirt. Retrieved December 6, 2017.
  17. ^ a b c Mann, Dillon (March 24, 2014). "Marco Civil: Statement of Support from Sir Tim Berners-Lee". World Wide Web Foundation. Retrieved December 5, 2017.
  18. ^ a b c d e f g h i j k Watts, Jonathan (November 1, 2013). "Brazil to legislate on online civil rights following Snowden revelations". The Guardian. Retrieved December 5, 2017.
  19. ^ Watts, Jonathan (September 9, 2013). "NSA accused of spying on Brazilian oil company Petrobras". The Guardian. Retrieved December 7, 2017.
  20. ^ a b c d e f Ghoshal, Abhimanyu (December 17, 2015). "WhatsApp is blocked in Brazil for the next two days (Update: Ban lifted early!)". The Next Web. Retrieved December 5, 2017.
  21. ^ Murphy, Mike (December 17, 2015). "Brazil shut down WhatsApp for roughly 100 million people for 12 hours". Quartz Media LLC. Retrieved December 5, 2017.
  22. ^ Ghoshal, Abhimanyu (December 17, 2015). "WhatsApp is blocked in Brazil for the next two days (Update: Ban lifted early!)". The Next Web. Retrieved December 5, 2017.
  23. ^ a b c d Ghoshal, Abhimanyu (May 3, 2016). "WhatsApp is blocked in Brazil for its 100m local users (Update: It's back!)". The Next Web. Retrieved December 5, 2017.
  24. ^ a b c d Lopez, Napier (July 19, 2016). "Brazil has blocked WhatsApp for the third time in a year (Update: Nevermind)". The Next Web. Retrieved December 5, 2017.
  25. ^ a b c d e f g h i j k n.a. "Internet Civil Landmarks: Positive and Negative Aspects". Trabalho Marco Civil. Retrieved December 7, 2017.
  26. ^ a b c d e f Greco-Stoner, Ashley (June 5, 2014). "Brazil's internet freedom law is a model of democracy for the modern era". Positive News. Retrieved December 7, 2017.
  27. ^ a b Mizukami, Pedro (March 25, 2014). "Brazilian Chamber of Deputies Approves Marco Civil Bill". Info Justice. Retrieved December 7, 2017.
  28. ^ a b c d e Spinola, Diego (April 30, 2014). "Brazil leads the efforts in internet governance with its recently enacted "Marco Civil da Internet". What's in it for intermediary liability?". The Center for Internet and Society. Retrieved December 7, 2017.
  29. ^ a b c Ridout, T.A. "Marco Civil: Brazil's Push to Govern the Internet". The Huffington Post. Retrieved December 5, 2017.
  30. ^ van der Marel, Erik; Lee-Makiyama, Hosuk; Bauer, Matthias (May 2014). "The Costs of Data Localisation: A Friendly Fire on Economic Recovery" (PDF). European Centre for International Political Economy: 19 – via ECIPE.
  31. ^ a b c Souza, Carlos Affonso; Branco, Sergio (May 3, 2016). "Brazil's Internet Bill of Rights not to blame for takedown of WhatsApp". Open Democracy. Retrieved December 5, 2017.
  32. ^ Ghoshal, Abhimanyu (May 3, 2016). "WhatsApp is blocked in Brazil for its 100m local users (Update: It's back!)". The Next Web. Retrieved December 5, 2017.
  33. ^ a b c Blum, Ricardo Opice; Vainzof, Rony (March 26, 2014). "Know the positive and negative points of the Civil Framework". CIO. Retrieved December 5, 2017.
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