Brazil must protect the Marco Civil regulatory decree

Before being suspended in her duties, Dilma Roussef, former president of Brazil, enacted a “regulatory decree” on the “Marco Civil,” groundbreaking legislation on digital rights. The decree affirms users’ rights, but opponents of the law want to use the current political situation in Brazil to take digital rights back to square one.

In 2014, in the wake of the Snowden revelations, Brazil passed law number 12.965/14 — also known as the Marco Civil. The law has since been recognized worldwide as a key piece of legislation for affirming digital rights: its provisions on the freedom of expression, Net Neutrality, and privacy have made Brazil a global leader for progressive internet legislation.

Yet ever since it came into force, the interpretation of the Marco Civil has been a matter of discussion and concern. Some of its articles are open to broad interpretation, and in some cases, that could negatively impact internet users’ rights. For instance, some interpretations would undermine Net Neutrality by creating loopholes for abuse. Others could erode the procedural rules for government requests of users’ personal information.

The government determined that a regulatory decree was necessary to clarify how the law should be interpreted and enforced. So last year Rousseff issued an open call for comments on the regulation for enforcing the law, following the same open, multistakeholder practice used to develop the Marco Civil itself. For one year, all interested stakeholders — civil society organizations, the tech community, the private sector, academics, and the general public — were able to submit comments to the presidency on the content of the decree. Access Now was one of the organizations that took part on the process, and we have been closely watching for the outcome.

Finally, the day before Rousseff was suspended from office, the result of this process — the final regulatory decree (PDF, English translation) — was signed and published. The decree was issued in the context of a controversial impeachment process started by the Brazilian congress — a congress that is now dominated by those who opposed Rousseff.

So what does the decree say? How does it impact people in Brazil? And what will be its fate, and the fate of the Marco Civil, given the current political situation in Brazil? Below, we take a look at what’s in the decree, and what the pathway might be for protecting the rights under the Marco Civil.

The decree: a step forward for users’ rights

The regulatory decree addresses key issues regarding the Marco Civil and its enforcement. Here we examine two issues that have stirred controversy.

Net Neutrality

Article 9.1 of the Marco Civil includes exceptions to Net Neutrality rules for emergency services and specific kinds of traffic management. In Articles 5, 6, and 7, the decree specifies that those traffic management practices must be narrowed to those necessary to ensure network security and to deal with exceptional situations of network congestion. It also establishes transparency obligations for providers and network administrators, and provides guidelines and recommendations on network management practices. Emergency services are also clearly defined. These provisions may help regulatory agencies and the public ensure that network management practices are not used to prioritize content or services in a discriminatory manner that undermines the open internet.

There is also a big win for Net Neutrality and the open internet in Article 9 of the decree. It bans practices and agreements that intentionally prioritize data. The ban applies to agreements between network operators — like telcos — and application providers, as well as to the “vertical integration” practice whereby a telco might prioritize its own offerings or those of partners. The decree also forbids agreements that compromise “the public and unrestricted character of internet access,” putting in question the “closed garden” business model behind offerings like Facebook’s Free Basics, which make only a portion of the internet freely available for free.

The issue of zero rating is not directly or explicitly covered in the decree — a missed opportunity.

Protection of personal records

One of the setbacks for users’ rights in the Marco Civil was the inclusion of data retention mandates proposed by law enforcement. The Marco Civil allows certain authorities — like the police — to request identifying information from internet service providers without a court order. The regulatory decree limited this capability, protecting users’ privacy by requiring that law enforcement have a motivation for the request. Additionally, the decree bans bulk requests for users’ information, and introduces thorough transparency reporting obligations for government agencies that are engaged in these practices. Finally, the decree includes some basic principles of data protection, such as the obligation for data holders to delete retained information once it’s no longer needed, or upon expiry of a length of time provided by law. These protections are very important for people in Brazil, since Brazil lacks a comprehensive data protection law and digital right organizations are fighting an uphill battle to get a bill passed.

It’s not all good news

Despite the advancements for digital rights the decree brings, risks remain.

So-called specialized services are explicitly excluded from the scope of the decree — see Article 2, sole paragraph — and are therefore not covered by the Net Neutrality regulations mentioned in the text. The presidency of Brazil missed the opportunity to clearly define what specialized services are and how they relate to the open internet. Just saying that they should not “substitute” for the open internet is not enough. In fact, it is not substitution but interoperation with the open internet that raises concerns. This concept is also under discussion in Europe in its open public consultation on implementing Net Neutrality rules.

The government also missed the chance to ban zero rating explicitly — even though Article 10 of the decree states that commercial offerings and billing models must preserve a unique and open internet, and promote social, cultural, and economic development. Consequently, Brazilian consumer protection agencies are left to evaluate zero rating practices — which are common in Brazil — to determine their impact on social, cultural, and economic development.

These practices are harmful for internet users because they damage competition, allowing companies to pick winners and losers in providing internet content and services to the public. In addition, recent research in other parts of the world has shown that zero rating is not an efficient way to bring more people online and therefore contribute to economic and cultural advancement.

What is the way forward?

As we mention above, Brazil’s current political situation is in flux, and it raises concerns for the protection of fundamental rights. Conservative lawmakers consider the safeguards in the Marco Civil incompatible with their agenda, which includes imposing stronger penalties for internet crimes and silencing the political opposition. You can see this demonstrated in the set of rights-harming cybercrime bills that we denounced back in April. The first-draft versions of those bills contained harsh penalties for online defamation that politicians and public figures could use to discourage critics. Subsequent versions that are still being discussed in the Brazilian congress aim to discard the safeguards for internet users under the Marco Civil, and to expand police powers in a way that harms fundamental rights.

The right path here is forward, not backward.  First and foremost, the Brazilian government should ensure the validity and effect of the regulatory decree. This piece of legislation has considerable legitimacy owing to the participation of a large groups of stakeholders, who participated in an open consultation that spanned almost a year. Revoking the decree would take Brazil back to a situation where misinterpretations of the Marco Civil are common and lead to serious harm to the human rights of internet users.

Going forward, the Brazilian government and its regulatory agencies — like the telecommunications authority ANATEL — should ensure that laws and policies for the internet and telecommunications will be built upon the Marco Civil, the balanced and progressive rules that put their nation at the forefront of digital rights globally.