New Rules and New Debate Over the Costs of Internet Freedom in Brazil

Brazil’s 60 million Internet users now have a civil-rights framework through the law “Marco Civil da Internet” which ensures the right to privacy on the net and the democratic access to any content. The country’s president, Dilma Rousseff, signed the decree law in late April, during the Netmundial meeting, which was held in Sao Paulo, bringing together representatives from 97 countries to discuss the future of internet governance.

While a controversial article that required online services providers to keep local-user information in data centers inside Brazil was left out of the bill, another contentious proposal concerning net neutrality has become a major subject of discussion and has faced a lobby from telecom companies, which are trying to find a loophole in the law to circumvent the ban on the sale of data packages differentiated by content.

The bill establishes that Internet providers may not charge different prices of packages, depending on their content, or on origin, destination, service, terminal or application. The aim is to prevent Internet providers from making user access more difficult depending on the content – for example, a streaming video or other services such as making a call by Skype. They would have to set charges for all data equally, permitting divergence only in the case of technical requirements. “Limiting Internet packages by content could bring disadvantages to consumers and could further restrict the entry of new companies into the market,” said Luiz Fernando Moncau, a researcher from FGV Direito Rio de Janeiro.

In contrast to the United States, where the Federal Communications Commission (FCC) has approved a proposal that allows Internet services providers, such as AT&T and Verizon, to charge suppliers of “over the top” services for faster delivery of their content; this practice is now prohibited in Brazil.

Legal Exceptions

In the case of net neutrality, the law distinguishes two possible exceptions in which there can be discrimination of the data traffic, which will be defined in the regulation process of the Marco Civil, to be concluded by June 23. One of the exceptions is the prioritization of emergency services. Another possibility is the case of technical requirements needed to provide adequate services and applications.

“The last one is a contentious point, because telecoms companies can argue that the download of video streaming, for example, could affect the quality of others services,” said Moncau, from FGV. Questioned by Nearshore Americas, the National Union of Telecom Companies (Sinditelebrasil) made no comment on the subject.

“First of all, it will be necessary to define which entity should monitor the compliance of the net neutrality rule. Secondly, this issue should be submitted to public consultation,” added Moncau.

The monitoring is important to avoid the privilege of traffic for some service or content providers in favor of others. “Even when there is a degradation of any service, the Internet provider must act with proportionality and equality,” said Veridiana Alimonti, lawyer at Consumer Protection Institution (IDEC) and member of the Brazilian Internet Steering Committee (CGI.br), which has the purpose of coordinating and integrating all Internet service initiatives in Brazil.

In its website, Sinditelebrasil said that differentiation of packages and speeds makes it possible to offer appropriate treatment to different Internet-user profiles and intensify the massification of broadband services in Brazil.”

Data Protection

The Marco Civil bill was considered an important step forward to defining points such as net neutrality and how Internet providers and the government can treat Brazilian user data. It establishes that international providers such as Google and Facebook must respect Brazilian law regarding the collection, custody, storage or data processing.

“We have always supported the Marco Civil da Internet. It originated from intense debate and resulted in a modern bill, composed of globally-recognized principles. The result can be consolidated into a solid legal framework in order to encourage a free and balanced Internet, which ensures network protection, stimulate online innovation and protect the rights of users,” commented Goggle by email.

Facebook also supports the bill. “We support the efforts to ensure a free and open Internet, which generates important benefits and opportunities for the Brazilian society. We continue to work for the implementation of this, ensuring innovation by individuals and enterprises,” commented Facebook by email.

The Marco Civil bill safeguards the privacy of users on the internet, prohibiting companies to use personal data for commercial purposes. Any access to this data can only be made by court order.

Counter-Espionage

The draft bill was begun in November 2009, and it was marked as urgent by President Dilma Rousseff after the revelations by Edward Snowden, a former U.S. National Security Agency contractor, that the NSA had monitored her staff communications and data belonging to Petrobras, the state oil company. This measure is one of several Brazilian government initiatives aimed at making Brazilian communication less vulnerable.

Despite the bill’s leaving out of the requirement that online services providers keep  local-user information in data centers inside Brazil, the Internet service providers must store the user-connection data for one year and  web-surfing data for at least six months for criminal investigation purposes.

For experts, this measure will not necessarily increase the costs for multinationals companies. “Many of these companies already store users’ data to gain access to consumer profiles,” said Moncau, from FGV. He emphasized the need to ensure that collected user-data will not be used for commercial purposes, and reminded that there is a proposal to create a specific law related to the protection of personal data.

The Marco Civil regulation will define the terms of the storage of data and which companies shall be responsible for storing them.

For Veridiana, from Idec, the data custody shouldn’t be mandatory, as it could hinder the development of applications in Brazil that are characterized by not storing content. “The authority could ask companies to store data of users who become the target of criminal investigation.”