[Off-Topic] Commenting on the Approved Marco Civil

As I said on social media before, I’m on the fence about this Marco Civil. Being a little cynical, if it comes from the government, from a PT-party government and still with opposition support, it already doesn’t smell right. The timing and the urgency are there to cash in on the recent American-government wiretapping on Brazilian soil and the Snowden controversy. The goal is to look like the nation’s savior while quietly embedding safeguards that legalize government activities that are shady at best.

I’ll publish the full text and add a few comments. Plenty of people have opinions about this Marco Civil, and my guess is 99% never read the law before weighing in. So I recommend reading it. I took the text from this PDF; if it’s outdated, let me know.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.” A purpose isn’t defined by decree; it’s whatever the users make of it. Guaranteeing a “social purpose” requires restrictive manipulation, and the Internet is what it is precisely because no purpose was imposed on it. Everyone does what they want, and the free market adjusts on its own.

The Internet is a data transport medium, everyone pays for it, and its use follows from that free access. Once you define an objective, however good the intentions, you create restrictions. Every restriction has to be regulated, and every regulation needs someone to audit it.

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.

Principles II and III are redundant, and III actually restricts II: the first defines privacy, the second breaks it and hands the government a monopoly on the breach.

V should be irrelevant. Following any standard by decree doesn’t work, and it begs the question: who defines what “techniques compatible with international standards” or “use of good practices” are? In practice, some government body ends up holding a monopoly on that regulation.

VII can’t be defined either. Who decides what “participatory nature” means? These bits guarantee one more bureaucratic jobs rack, an Anatel or something like it, to “guarantee” these “rights.” Every non-fundamental “right” demands 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 whole article is bad. You can’t “guarantee” Internet access for everyone, the same way you can’t guarantee food or education to anyone. The moment you define one person’s right, you decree another’s servitude, because the government doesn’t have the means to guarantee it, we citizens do. And when you declare that someone has a right to something that’s ours, you infringe our rights too.

Sorry, the Internet isn’t free. Electricity, water, and basic sanitation aren’t free either, somebody pays. Put a government regulator in charge and we’ll get the same level of service as Sabesp and Eletropaulo: water shortages, blackouts, and the lights going out when it rains. Why do we put up with that? Government regulation.

Fostering “innovation” isn’t and shouldn’t be the government’s job. Innovation is a natural consequence of free competition and a free market. Making it a state task hands out permission to burn our tax money. And, again, who defines what “innovation” is? Another regulator, another rack of bureaucrats.

So far, the only thing these 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.

At least it shows some politicians aren’t total illiterates. These are just technical definitions, pretty raw, but they do the job for this document. Note the “IP address,” as if it guaranteed identifying someone. What’s missing is a line saying an IP address can’t be used as the 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.

Translating “inviolability”: the access provider shouldn’t violate it unless the Judiciary forces them to.

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

The paragraphs of this article are all redundant. In short: the provider has to declare how it uses the data it collects, and when that isn’t clear, the government holds a monopoly on getting at it, since every paragraph ends with “except by judicial order, in the form of the law.” Everyone already does this. We have the “Terms of Service” nobody reads and everybody accepts, but that technically are there.

It’s not a totally bad article: it ratifies behaviors that are already standard in any decent service. But we all know that, by judicial order, anyone can get anything in this country, because there’s no privacy limit on the government. And if the government can access everything, so can anyone else. There’s 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 short, this is the article that should stop a provider from creating a “Facebook” plan, where traffic to Facebook gets high priority and access to everything else is slower or nonexistent. It also blocks silent “traffic shaping,” where the provider watches your traffic and makes access to certain places, like the Pirate Bay, slower.

The principle is valid enough. Nobody in their right mind would be against “neutrality” or isonomy.

Except it raises a question. We’ve had commercial Internet in Brazil for nearly 20 years, and before this document none of that was illegal. So why don’t you see a Claro or a Net selling “YouTube” plans?

Ask yourself that. The answer isn’t simple, and you’ll start wondering 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 it explicit that all data sit at the Judiciary’s disposal. Privacy is broken by law, and the government holds a monopoly on the breach. That opens the door to every kind of corruption. If only the government can open someone’s information, corporate espionage gets easier: grease a judge’s palm, issue a warrant, and whoever can pay gets access to anything.

Yet another mechanism that guarantees the creation of a regulator, and here it’s spelled out, “in the form of the regulation.” Who’s going to “verify compliance with Brazilian law on data collection, storage, and retention”? This was always unnecessary and still is, but now we’ll pay some deadbeat auditor to do nothing and bully smaller services on top of it, choking off free competition. Want to mess with someone’s business? Call this “police” and say 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 take this article to cover only Internet access providers. It’s just an excuse to raise 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 one is even more Orwellian. It lets the government force a provider to track more information, for an indefinite period and indiscriminately. The government could already pull this off before, through Anatel’s pull 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 got more confusing. In practice, if a user of your site posts an offensive comment and the offended party gets a judicial order, the site isn’t criminally liable for the content as long as it takes the comment down when ordered.

The people who lean on this the most are the imbecile candidates for public office, who fire off judicial orders all the time against any site with political content. The problem is that offending a politician is against the law. Our Constitution itself has become a problem these days.

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 the previous ones already set up: unrestricted, indiscriminate access to data that’s supposed to have “privacy” guaranteed.

“It’s up to the judge,” meaning, 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”. That body would be responsible for “guaranteeing” what’s in the paragraphs: setting up governance mechanisms, rationalizing management, promoting interoperability, and on it goes. You’ve sanctioned by law a machine for corruption, market reserve, breach of free competition, and the rotting of the Internet market.

Understand: there’s no way to define “multi-stakeholder governance,” “collaborative,” or “rationalization.” Who decides what counts as collaborative, interoperable, or efficient? Someone has to interpret it, and anything left open to interpretation only benefits whoever has the power to impose their reading. 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’re technical clauses for software procurement bids, which already exist, and I don’t see the use of them. In some cases the items are dispensable and add one more unnecessary restriction.

This isn’t the state’s duty.

Again, it’s not the state’s duty. This whole chapter is restrictive and shouldn’t exist, because it frees up unrestricted use of our money on government programs. As a taxpayer, I’m against any program that spends my money that way. It’s one person’s right breaking another’s, and by definition that 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 upside of this text. The relevant part, neutrality, should be regulated by Consumer Rights. Everything else sanctions the legality of breaking privacy and hands the government a monopoly on that breach. And it creates “rights” that will demand more public spending and more state apparatus, at our expense and with no apparent benefit. At bottom it’s a propaganda document to make the government look good, at my expense and at yours. Congratulations.