The future of Internet in Brazil is passing through a crucial moment. A wave of massive criminalization intents seemed to be left behind since civil society movements managed to block a Draft Bill on Cybercrimes (known as PL Azeredo) and the Ministry of Justice installed an online public consultation for establishing a Civil Rights Based Framework. But it was only the first round. Although apparently rejected, the Criminal Draft Bill returned on a sneaky way.
After being heavily criticized, sparking an opposition movement known as “Mega Não” (“Huge No”), which gathered nearly 157,000 signatures against it, the project seemed dead and buried in 2009. But between the first and second round of elections, when the focus of public attention was on presidential candidates, the Committee on Constitution and Justice from the Federal Chamber of Deputies brought the bill back to the agenda. They have presented a favorable opinion and a substitutive text under Rapporteur of Deputy Régis de Oliveira, who hasn’t even been re-elected.
The Center for Technology and Society from Fundação Getúlio Vargas Rio analyzed the proposals of the substitutive and has just published a critical study on it. The document, in Portuguese, is available here. But a summary of the critical points goes as follows:
The grounds for rejection of the Draft Bill, and its substitutive, are plenty. Although the intent was to criminalize only serious conducts, trivial behavior of digital culture are also being punished. For example: unlocking mobile phones or transferring legally purchased music from your MP3 to your computer are all considered crime. Even worse, the project also threatens the future of innovative uses of the Internet. Programmers, gamers, social network users and average consumers of gadgets can easily be classified as criminals under the text of the Draft Bill. And penalties are quite substantial. For example: a consumer has just bought a tablet, like the iPad, which was sold locked to applications that were not produced and/or approved by the manufacturer. Considering the diversity of useful applications that are launched in innovative ways, even without the approval of the manufacturer, the consumer decides to jailbreak the device and use these applications at his discretion. In doing so, he is performing the conduct foreseen by article 285-A, subjected to detention from 1 to 3 years and fine.
It could be argued that hardly anyone will be criminally prosecuted for that matter. What leaves us the question: so why criminalize? In this case, to criminalize something that is not intended to be punished is a sign of poor legislative drafting and also a serious disincentive to entrepreneurs. It is noteworthy that jailbreaking is allowed even in the U.S. under the argument of promoting interoperability and innovation in the software industry, in addition to respecting the consumer’s right to make legitimate usage of the technology acquired.
Besides this aspects of massive criminalization, even more serious question arises when the topic is Internet privacy. Several articles from the Draft Bill suggest a real system of vigilantism on the web. Internet Service Providers are required to report suspicious behaviors of users, as if they were an “Internet police”. They are also obliged to maintain, under penalty of fine, connection logs for the long period of 3 years. The text of the substitutive worsens this issue even further once it extends such obligations to providers of all kinds of Internet services, not only connection providers (what can include bloggers, news portals, etc.). This represents a serious threat to fundamental rights such as privacy, freedom of expression and due process.
Furthermore, the Draft Bill was an expressive lack of technical rigor, particularly when dealing with concepts related to data protection. The term “electronic data” is used through out the Bill to express a huge diversity of types of data: connection logs, access logs, registry data, emails, texts, databases or any other content in digital format. This generalization threatens privacy rights and brings too much uncertainty for entrepreneurs, undermining an important area for national development, once we consider Information and Communication Technologies (ICTs) an strategic sector of the Economy.
Therefore, we must be alert about misleading arguments that support the project without taking into account these basic rights and the potential uses of the information technologies. Those who support the text based on the argument that it is an anti-pedophile Bill are completely mistaken. We should acknowledge that there is just one article that reaches this topic, among many others that open space for the massive criminalization. It is also a mistake to rely on the Convention of Cybercrime to justify the text. Brazil has never signed this Convention, which was ratified only by 30 countries, mainly those who have already regulated the Internet through a Civil Framework, not a single one from Latin America.
This indeed is a point to be emphasized: Brazil needs a civil rights framework for the Internet. It is a complex subject that requires prior technical definitions, which have not yet been conceived legislatively in the country and starting from criminal definitions is a clear mistake. In this context it is of utmost relevance to dismiss the Bill in question and give attention to setting basic levels. To this end, we must carry forward the process of constructing the so called “Marco Civil”.
Unlike the Draft Bill on Cybercrimes, which tends to follow the legislative channels stealthily, the process of Marco Civil has been recognized, including internationally, as an innovative initiative concerning its usage of Internet tools to foster democratic participation in the legislative process. As a result, a Draft Bill shall be presented soon to the Congress, aiming to bring technical definitions, to establish principles, rights and obligations of Internet users and Internet Service Providors.
