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Traffic Jam | Brazil’s «Internet Constitution» Law

São Paulo — Some have dubbed it “the Constitution of the Internet,” and the political debate has taken a long and winding road toward a vote on the floor of  the federal lower house. In the final minutes before a definitive vote,  the issue of net neutrality is looming large.

You can read up on the legislative history with a guided search on the Planning Ministry’s press clippings page.

The principle lobbying group, judging from coverage in the morgue, seems to be ABERT, the Brazilian Association of Radio and TV Broadcasters.

What is holding up the legislation? On Friday afternoon in the Congress,

the speaker of the house, Marco Maia (PT-RS), went so far as to say that concensus existed in relation to 95% of the bill’s provisions and that the legislation would be put to a vote that day, given that net neutrality was the only remaining issue to be resolved. In the late afternoon, however, Maia retreated, delaying the vote.

Sources say that telecommunications operators believe that net neutrality would prevent them from doing a huge business in the future. Federal deputies Eduardo Cunha (PMDB-RJ) and  Ricardo Izar (PSD-SP) are riding point on that position, according to the same sources, and could well influence their respective back-benches.

Lawmakers say that the telecoms want the issue written out of the bill. PT members say the bill has defects related to copyright and data privacy.

On the copyright side of the case, there is pressure to remove the new language, leaving the old language in effect. Abert president Daniel Slaviero said that protecting intellectual property rights should be first and foremost.

Source: O Globo, via  Portal ClippingMP.

Too bad you cannot just google up your Brazilian lawmaker to find out whether they might have received a contribution — a perfectly legal one — from the Boob Tube industry.

Software Livre founder and Campus Party alpha hacktivist Marcelo D’Elia de Branco elaborates on the situation, and I translate most of it:

Marcelo Branco: Telecommunications and intellectual property lobbies are going all out to ensure that the Marco Civil da Internet – the Internet Civil Code — ends up in the trash heap of history.

“I don’t approve of the Internet Civil Code in its present form. I will not support a draft bill produced at the last minute despite all that I have done over the years for this legislation,” Marcelo Branco told IHU On-Line. In Marcelo’s view, the amendments to the Internet Civil Code, PL 2.126/2011 — the floor vote on the issue which has been postponed until next week — are “a serious concern” because they “completely alter” the original intent of the bill, which was designed to protect freedom of speech but is now transformed into a measure that would allow censorhip in the form of prior constraint.

Prior Restraint

In the following interview, conducted by phone, Marcelo criticizes Articles 15 and 9 of the law as amended by federal legislator Alessandro Molon (PT-RJ).

Branco says that with the amendment of Article 15, which permitted the removal of Internet content only with a judicial order, is now open to the possibility that content bearing “presumptive intellectual property rights” be removed on the basis of a simple complaint.

Another bone of contention is the amendment to Article 9, which deals with net neutrality. In Branco’s view, “if this proposal is approved, then responsibility for regulating the Internet could fall to Anatel, the telecoms regulator whose job it is to mediate exceptional cases involving net neutrality among companies with the most at stake in ending net neutrality.

In Branco’s view, the amendment “fails to respect the public hearings on the issue.” How, he asks, are we to believe in public hearings carried out by government agencies if the communications and intellectual property lobbies are able at the last minute to trash everything that was discussed? This is a failure to respect the consultations process for the Internet Civil Code.

Marcelo D’Elia Branco directed Campus Party Brasil for three years. Branco founded Software Livre Brasil and holds an honorary professorship at evatec/ Peru … His blog can be consulted at http://softwarelivre.org/branco.

Our interview with Marcelo follows

IHU On-Line – The Internet Civil Code is viewed as a progressive piece of legislation, but the contents of the bill were modified before it came to a vote on the floor. What changes were made at the last moment in Article 15, which deals with the civil responsibility of Internet providers with respect to user-posted content?

Marcelo Branco – The Internet Code, which has been publicly debated since 2003, is the fruit of a long debate and is based on guaranteeing the rights Internet users and setting limits on the entire Internet supply chain from infrastructure to content.

With Article15, the Civil Code embodies a principle inherent in any system of democratic rule of law. Under Article 15, all Internet provides would be prohibited from taking content offline without a judicial order, based on a first principle, that there can be no prior constraint on freedom of expression. For this reason, only the judiciary can order content taken offline, as is already the case with other means of communication. Thus, the Civil Code is trying to set clear rules under which only the judiciary can order the removal of online content.

The amended Article 15, however, leaves open the possibility that content that “supposedly” infringes on intellectual property right can be removed on the basis of a single, mere complaint. Under these circumstances, it falls to the Internet provider to judge which content should be maintained and which removed. In this way, public due process is traded for a private and unaccountable process. The Brazilian Association of Internet Providers opposes this amendment because it attributes obligations to ISPs that are inconsistent with their status as service providers. This is a crucial point, because the amendment is diametrically opposed to the original language, which sought to protect freedom of expression but now is being used to exercise prior Isso restraint on speech.

IHU On-Line – The other change has to do with Paragraph 1 of Article 9, which has to do with net neutrality. What changes have been made to the original provisions with respect to neutrality and the means necessary to enforce it?

Marcelo Branco –This change is political in nature. In the original draft of the MCI, the CGI established the rules for Internet use. CGI is an institution with many partners, representing NGOs, business lobbies, academic experts and government officials. For this reason, it is a highly respected model of Internet management, considered the best in the world. To this end, the most fundamental principal of the MCI is net neutrality, aside from certain exceptions ordered by the federal president on the advice of the CGI.

The Ministry of Communications, however, influenced by telephony operators and telecom companies, have argued that Anatel, the federal telecoms regulator, should be the agency that establishes such exceptions to the net neutrality rule. This position stirred up controversy between civil society and Anatel. A number of groups argued that Anatel, as the federal telecommunications regulator, deals with only a portion of the interests at play in net neutrality. It would be illegitimate that a party that competes with other parties in matters related to the Internet should set the rules on net neutrality.

An amendment by federal lawmaker Alessandro Molon removed language from the bill that would have removed Anatel as the regulator of the Internet, transferring this responsibility to the federal presidency. Two hours later, however, the minister of communications, Paulo Bernardo, announced that in his view, Anatel will regulate the Interview under the new law. As a result, the draft language seems to leave the matter open: whether or not Anatel would regulate exceptions to the rule of net neutrality.

IHU On-Line – What are the effects of net neutrality regulated by Anatel?

Marcelo Branco – The Interent is a network of social communication, of electronic conversation. How, then, can parties interested in disputes over telecommunication business models be allowed to determine an exception to the net neutrality rule? If this amendment passes, Anatel, now authorized to mediate disputes and exceptions in the Internet sector involving net neutrality — could become the sole regulator of the Internet.

It is for nothing that the Ministry of Telecommunications has been trying for more than 10 years to end net neutrality in the USA, alleging that it violents the principle of free competition, creating artificial rules based on Internet filtering — a task that a telecoms company could no on its own.

Allowing Anatel to rule on and control exceptions to net neutrality is unacceptable. Approved in their current form, these two articles will turn the original rationale, debated since 2003 with a broad spectrum of society, on its head,

The worst part of this episode is that the bill was subjected to public hearings a year ago, hosted by the Ministry of Justice. As such, the law is the most democratic and most amply debated in the history of Brazil. The bill was then sent down to the lower house, where it was subject to an open vote, with no mention of the two poison pills I have mentioned. The big problem with these two provision, then, is the contempt they show for the public debates to which the law was subjected. How are we to believe in future public debates if, at the last minute, the communications and intellectual property lobbies throw all our hard work in the garbage? This is to spit in the face of those who developed the MCI

IHU On-Line – You have said that the MCI has become Brazil’s version of PIPA — Project IP Action, or, Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act) — and SOPA (Stop Online Piracy Act) and that public deliberations on these policy areras have ended up in the trash heap. Is there an attempt underway to clone legislation existing in the USA or France, with SINDE? What is the purpose of these efforts to regulate the Internet?

Marcelo Branco –These are attempts by the economic interests and megacorporations who drafted PIPA, SOPA and SINDE. These groups are pressuring legislators and the Minister of Communications to change the MCI. So then, the very same group that passed the PIPA,SOPA and SINDE laws, along with interest groups supporting similar property rights legislation in Spain, is the group seeking these amendments to the MCI in Brazil.

The said thing is not that they have tried to effect these changes, but that they have succeeded. The MCI has gone from a bill deserving general applause to being called a threat to freedom of expression.

IHU On-Line – What aspects of the issue were not taken into account in drafting teh MCI?

Marcelo Branco –A number of Internet-related issues still need improvement. But it is a fundamental declaration, if we may call it that. It defines the rights and obligations of users all along the Internet value chaing, starting with the individual user. MCI is an admirable piece of work, regardless of the two last-minute amendments we were discussing.

IHU On-Line – How do you see the vote shaping up.=?

Marcelo Branco – I expect our congressmembers will not cave in to corporate lobbies and will respect the popular will. I hope the bill will not disappoint Brazilians when it turns out to contradict it original essence.

IHU On-Line – Would you like to add something?

Marcelo Branco – I and others have been trying since 2003 to get this issue on the agenda of the Congress. I was saddened to see these last-minute amendments. I do not support the final version of the bill and will not uphold it.

I do not approve of the MCI in its present form. I will not lend my name to a bill whose language has been altered at the last minute … Our battled was to approve the MCI. Now, legislators have voted the legislation down and suggested another undesirable final version. I can’t sign my name to it. I oppose the language of the MCI as it is worded in the latest version.

The government is responsible for this situation. You would expect opposition from parties such as the PSDB and DEM-PFL, and especially given the PSDB’s insistence in pursuing its bill on Internet rights, the Azeredo Law. But the government has ample political support in the legislature. What disappointments me, then, is the congressional base as a whole, which is accepting the government’s directions is a manner that betrays the entire concept of participatory public policy development.