[Off-Topic] Commenting on the Approved Marco Civil

As I said on social media before, I’m pretty much on the fence about this Marco Civil. Being a little cynical, of course, if it comes from the government — from a PT-party government and still with opposition support — it can’t smell good. The timing and the urgency, of course, are to take advantage of the recent events of American government wiretapping on Brazilian soil and the Snowden controversy. The goal is to appear as the savior of the nation and at the same time embed safeguards that legalize at best shady government activities.

I’ll publish the text in full and make a few comments. Many people have many opinions about this Marco Civil, and my guess is 99% haven’t even read the text before giving an opinion. So I recommend you read it. The source from which I took the text is this PDF. If by chance I have an outdated text, let me know.

Don’t forget to comment.

Translator’s note: the full legal text of the Marco Civil is preserved in the original Portuguese (it’s a Brazilian law, whose authoritative text is Portuguese). Only Akita’s commentaries are translated below, interleaved with a brief summary of each article so an English reader can follow along.

GLOBAL SUBSTITUTE SUB-AMENDMENT TO PLENARY AMENDMENTS TO BILL No. 2,126 OF 2011

Establishes principles, guarantees, rights, and duties for the use of the Internet in Brazil.

CHAPTER I — PRELIMINARY PROVISIONS

Art. 1 — This Law establishes principles, guarantees, rights, and duties for the use of the Internet in Brazil.

Art. 2 — The discipline of Internet use in Brazil is grounded on respect for freedom of expression, as well as: (I) recognition of the global scale of the network; (II) human rights, personal development, and exercise of citizenship in digital media; (III) plurality and diversity; (IV) openness and collaboration; (V) free initiative, free competition, and consumer protection; and (VI) the social purpose of the network.

There’s no way to guarantee “the social purpose of the network.” Right below it talks about freedom of expression, free competition. The purpose can’t be defined by decree — it will be whatever its users make of it. To guarantee a “social purpose” requires restrictive manipulation. The Internet is only what it is because of its non-purpose — everyone does what they want, the free market makes adjustments on its own, and there’s no need for anything defining pseudo-purposes. The Internet is a data transport medium, everyone pays for it, its use is determined by this free access. By defining an objective, no matter how good the intentions, you’re automatically creating restrictions. And every restriction needs to be regulated. And every regulation needs “someone” to audit.

Art. 3 — The discipline of Internet use in Brazil has the following principles: (I) guarantee of freedom of expression; (II) protection of privacy; (III) protection of personal data; (IV) preservation and guarantee of network neutrality; (V) preservation of stability, security, and functionality of the network; (VI) accountability of agents according to their activities; (VII) preservation of the participatory nature of the network; (VIII) freedom of business models on the Internet.

Paragraphs II and III are redundant, and III actually restricts II because the former defines privacy and III breaks privacy and gives a monopoly on the breach to the government.

V should be irrelevant. Following any kind of standard, by decree, doesn’t work. Because the question is: who defines what “techniques compatible with international standards” are or “use of good practices”? It means some government body will hold a monopoly on this regulation.

Again, paragraph VII can’t be defined. Who defines “participatory nature”? These paragraphs guarantee the need for yet another bureaucratic jobs rack. Anatel or similar. To “guarantee” these “rights.” Every non-fundamental “right” means the need for a regulator. And every regulator is harmful.

Art. 4 — The discipline of Internet use in Brazil has the following objectives: (I) promote the right of access to the Internet to all; (II) promote access to information, knowledge and participation in cultural life; (III) promote innovation and broad dissemination of new technologies; (IV) promote adherence to open technology standards that allow communication, accessibility, and interoperability.

This entire article is bad. You can’t “guarantee” the right of access to the Internet for everyone. In the same way you can’t guarantee food, education, or anything else to anyone. From the moment you define someone’s right, you’re also decreeing the subservience of another, because the Government doesn’t have the means to guarantee this — we citizens do. And when you define that someone has a right to something that’s ours, our rights are infringed too.

Sorry, Internet isn’t free. Not even electricity, water, and basic sanitation are free — we have to pay. Put a governmental regulatory body and we’ll have the same level of service as Sabesp, Eletropaulo. Water shortages. Blackouts and power outages when it rains. Why do we suffer this? Government regulation.

It isn’t and shouldn’t be the government’s attribution to foster “innovation.” Innovation is a natural consequence of free competition and free market. By placing innovation as a government attribution we’re giving permission to spend our tax money and throw it away. Again, who defines what “innovation” is? Another government regulatory body, another bureaucratic jobs rack.

Up to here, the only thing the articles guarantee is the creation of regulatory bodies.

Art. 5 — Definitions: Internet, terminal, autonomous system administrator, IP address, Internet connection, connection record, Internet applications, and records of access to Internet applications.

Well, at least it shows some politicians aren’t totally illiterate. These paragraphs are just technical definitions. Quite raw, by the way, but I think they serve for this document’s purposes. Emphasis on “IP address,” as if that guaranteed positive identification of someone. What was missing was defining that an IP address can’t be used as a basis to identify anyone.

Art. 6 — In the interpretation of this Law, the nature of the Internet, its particular uses and customs, and its importance for the promotion of human, economic, social, and cultural development shall be taken into account.

CHAPTER II — RIGHTS AND GUARANTEES OF USERS

Art. 7 — Access to the Internet is essential to the exercise of citizenship, and the following rights are guaranteed to users: inviolability of intimacy and private life; inviolability and secrecy of communications; non-suspension of Internet connection except for debts; maintenance of the contracted quality; clear information in contracts; non-provision of personal data to third parties except with consent; clear information about data collection and use; express consent; deletion of personal data upon request; publicity of usage policies; accessibility; application of consumer protection norms.

Define “inviolability” as meaning “the access provider shouldn’t violate unless forced by the Judiciary.”

The maintenance of the contracted quality should be the domain of Consumer Rights.

The paragraphs of this article are all redundant. In summary: the service provider must explicitly declare the use of data collected from users and, if it isn’t clear, the government has a monopoly on the acquisition of that data (since every paragraph ends with “except by judicial order, in the form of the law”). Again, everyone already does this. We have “Terms of Service” that no one reads but that, technically, are there.

It isn’t a totally bad article — it ratifies some behaviors that are already standard in any good service. And we all know that by judicial order anyone can get anything in this country, since there’s no privacy limitation for the government. And if the government can access anything, anyone else can too. So, there is no guarantee of privacy anywhere in this document.

Art. 8 — The guarantee of the right to privacy and freedom of expression in communications is a condition for the full exercise of the right of access to the Internet.

CHAPTER III — PROVISION OF CONNECTION AND INTERNET APPLICATIONS

Section I — Network Neutrality

Art. 9 — The person responsible for transmission, switching, or routing has the duty to treat any data packets in an isonomic way, without distinction by content, origin, destination, service, terminal, or application. Traffic discrimination or degradation is only allowed for: (I) indispensable technical requirements, and (II) priority for emergency services.

In summary, this is the article that should prevent an internet provider from creating a “Facebook” plan, where traffic to Facebook would be high priority and access to the rest would be slower or nonexistent. Or also prevent, without the user knowing, “traffic shaping” where the provider monitors your traffic and makes access to some places (like Pirate Bay) slower.

The principle is even valid — I think no one in their right mind would be against “neutrality” or isonomy.

But that raises the question: we’ve had commercial Internet in Brazil for over 20 years. Before the approval of this document, none of this was illegal. Why don’t you see a Claro or Net selling “YouTube” plans?

Ask yourself that question, and the answer isn’t simple. You’ll start asking what the real purpose of this article is.

Section II — Protection of Records, Personal Data, and Private Communications

Arts. 10–12 — Guardianship and disclosure of connection and application access records, personal data, and content of private communications; sanctions (warning, fines up to 10% of revenue, suspension, prohibition).

This article makes explicit that all data are at the Judiciary’s disposal. There is no privacy — it’s broken by law. And the government holds a monopoly on this breach. This opens all kinds of corruption. If only someone from the government can open someone’s information, corporate espionage got easier: just grease a judge’s palm, issue a warrant, and whoever can pay will have access to any information.

Yet another mechanism that guarantees the creation of a regulatory body. And here it says explicitly “in the form of regulation.” Who will “verify compliance with Brazilian legislation regarding data collection, storage, etc.?” This was always unnecessary, continues to be unnecessary, but now we’re going to pay some useless auditor to do nothing and still be a bully to smaller services, restricting free competition. Want to mess with someone’s business? Call this “police” saying company X isn’t complying with this paragraph.

Subsection I — Storage of Connection Records

Art. 13 — In providing Internet connection, the relevant autonomous system administrator has the duty to maintain connection records, under secrecy, in a controlled and secure environment, for one year.

I understand this article refers only to Internet access providers. This is just justification to increase costs and, again, break privacy.

Subsection II — Storage of Access Records to Internet Applications in Connection Provision

Art. 14 — In providing connection, paid or free, it is forbidden to store records of access to Internet applications.

Subsection III — Storage of Access Records in Application Provision

Art. 15 — The provider of Internet applications constituted as a legal entity, which carries out this activity in an organized, professional, and economic manner, must maintain the respective records of access to Internet applications, under secrecy, for six months.

This article is even more Orwellian. It guarantees that the government can force a provider to track more information, for an indeterminate period, in an indiscriminate way. Look, the government could already do this before, by influence of Anatel and other lobbies, but now it’s secured by law.

Arts. 16–17 — Prohibition of storing records of access to other applications without prior consent; opting not to store records doesn’t imply responsibility for damages.

Section III — Responsibility for Damages from Third-Party Content

Arts. 18–21 — Connection providers are not civilly liable for damages from third-party content. Application providers can only be civilly liable for damages from third-party content after a specific judicial order. Special treatment for cases involving nudity/private sexual content.

This doesn’t seem totally bad — it already happens today, but it’s more confusing. In practice, if a user of your site makes an offensive comment and the offended party gets a judicial order, the site isn’t criminally responsible for the content if it removes it when ordered.

The people who use this resource most are the imbecile candidates for public office who issue judicial orders all the time to every site that has political content. The problem is that offending a politician is against the law. Our constitution itself is a problem today.

Section IV — Judicial Request for Records

Arts. 22–23 — The interested party may request that the judge order the person responsible for the storage to provide connection records. Secrecy and privacy must be preserved.

This article extends what was already defined in previous articles: unrestricted and indiscriminate access to data that should have “privacy” guaranteed.

“It’s up to the judge” — that is, forget your privacy. Judges can be, and are, bought. It’s a market.

CHAPTER IV — ACTION OF THE PUBLIC POWER

Art. 24 — Guidelines for the action of the Union, States, Federal District, and Municipalities in the development of the Internet in Brazil: multi-stakeholder governance, promotion of management rationalization, interoperability, open standards, data publicity, infrastructure optimization, capacity building, promotion of culture and citizenship, provision of integrated public services.

This article sanctions the Orwellian part: the creation of regulatory bodies, the “Thought Police”. It will be responsible for “guaranteeing” what’s in the paragraphs: establishing governance mechanisms, management rationalization, promotion of interoperability, etc. Here you’ve sanctioned by law the creation of a body of corruption, market reserve, breach of free competition and free market, and decay of the Internet market.

Understand, there’s no way to define “multi-participatory governance,” “collaborative,” “rationalization,” etc. Who defines what’s collaborative or not? Who defines what’s interoperable or not? Who defines what’s efficient or not? Someone needs to interpret. And if it’s open to interpretation, it’s a mechanism that only benefits those who have the power to enforce their interpretation. So, by definition, it’s a bad text.

Arts. 25–28 — Internet applications of public entities should seek compatibility with multiple terminals, accessibility, compatibility with both human reading and automated processing, usability, and strengthening of social participation.

This shouldn’t be here. They are technical clauses for software project bids that already exist. I don’t see the usefulness. In some cases some of these items are unnecessary and, again, we create unnecessary restrictions.

This isn’t the state’s duty.

Again, it’s not the state’s duty. This entire chapter is restrictive and shouldn’t exist. It guarantees the unrestricted use of our money for government programs. As a taxpayer, I’m against any government program that spends my money. And here’s the example: one person’s right breaking another’s right. By definition, this can’t be a guaranteed right.

CHAPTER V — FINAL PROVISIONS

Arts. 29–32 — The user has the option of free choice in using software for parental control; the defense of interests and rights established in this Law may be exercised in court; until the entry into force of the specific law, liability for copyright infringement remains governed by current legislation; the Law enters into force sixty days after publication.

Representative ALESSANDRO MOLON. Rapporteur

Honestly, I don’t see the advantage of this text. In the part that is relevant, neutrality, it should be regulated by Consumer Rights. All the rest is sanctioning the legality of privacy breach and giving the government a monopoly on that breach. And it’s also creating “rights” that will require more public spending and more state apparatus at our cost and without any apparent benefit. Basically it’s a propaganda document to make the government look good, at my expense and at yours. Congratulations.