Internet Governance And The Brazilian Civil Rights Framework

EDITORIAL STAFF 2014: gREAT chALLEngES AhEAD LACTLD Report 4th edition 3rd year, 2014 Dear readers, Board of Directors Eduardo Santoyo Luis Arancibia Víctor Abboud Clara Collado Frederico Neves Editorial Board Eduardo Santoyo Luis Arancibia Clara Collado Carolina Aguerre General Coordination Marilina Esquivel Editorial assistant Sofía Zerbino Art & Design Frida Photography Martín Mañana Image banks Images provided by the registries Translation Virginia Algorta Judith Filc LACTLD LACTLD Report is the ccTLD publication of Latin American and Caribbean TLD Association (LACTLD). The published material does not compromise in any way LACTLD’s responsibility. The opinions expressed belong solely to the authors and do not necessarily represent the Association’s views. This is a work licensed under Creative Commons Except when expressed otherwise, this work is under an Attribution Licence. In every use of the work authorized by this licence it will be necessary to acknowledge the authorship (compulsory in all cases). SummARy 4. Current discussions on Internet governance By Carolina Aguerre 7. NIC Mexico celebrates its 25th anniversary By Oscar Robles Garay 3 • LACTLD The Internet has never stopped growing and developing since its early origins and has consistently raised relevant challenges that trigger the creativity and responsibility of those who feel as a part of its history. Today we face a fundamental change in the Internet governance ecosystem since the announcement of the National Telecommunications and Information Administration (NTIA) of the United States and its intention to transfer key administration functions of the root zone to the global Internet community. LACTLD underscores its vision about the Internet as a collaborative, multistakeholder effort and this principle should prevail on its regulation, promotion and governance. That’s why we are committed to continue our work to ensure the significant representation of the ccTLDs of our region in the definition of a proposal that provides safeguards and opportunities for operators with a responsibility over the DNS administration within their own communities. In this context, on 23 and 24 April the Net Mundial conference was held in Sao Paulo, Brazil with the participation of representatives from sectors of 85 countries. The approved Civil Rights Framework for the Internet, which establishes principles, rights and obligations for users and providers was approved the day before the conference and signed by President Dilma Rousseff at during the opening ceremony. Both issues are addressed in this fourth edition of our Report. In these pages you will find a paper on the meeting in Brazil, the discussions that are taking place in the world on Internet governance and the challenges ahead. Also, an article about the Internet Civil Rights Framework which contextualizes its origins and highlights its main features in relation to privacy, freedom of speech, net neutrality, among other topics. Open data is another topic that is increasing its relevance and impact on the economy, government, business, decision making and many other aspects of life of individuals and organizations is the open data. An extensive article discusses the definition, value, challenges and future of open data with regional examples. The constant emergence of ideas, projects and discussions facing the 25th anniversary of the World Wide Web and 20 since the emergence of the World Wide Web Consortium, both initiatives by Tim Berners-Lee, which is portrayed in an article. Additionally, it is an honor to feature the performance of European ccTLDs through the CENTR Awards initiative, where projects were selected among different categories (Safety, Research & Development, Marketing and Communications and a special mention to the Contributor of the Year). We also especially dedicate this issue to greet one of the historical Registries of our region, as NIC Mexico is celebrating 25 years of history. The edition is completed with a report on the evolution of Internet Exchange Points (IXP) in the region and their links with ccTLDs. Last but not least, an article describing the landscape and trend of domain names in Latin America and the Caribbean. I hope you enjoy reading this new Report, Eduardo Santoyo Chairman LACTLD 8. Internet Governance en the Brazilian Civil Rights Framework By Luiz Fernando Moncau and Marilia Maciel. 12. Showcasing outstanding contributions from European ccTLDs By Peter Van Roste 14. The value of open data By Carla Bonina 18. Perspectives on domain names in the region By Carolina Aguerre 20. IXP in Latin America and the Caribbean By Sofía Zerbino and Christian O’Flaherty 22. The world celebrates the Anniversary of the WEB and W3C doCuMENtS iNtErNEt govErNaNCE aNd thE braziliaN Civil rightS FraMEWork By Luiz Fernando moncau, lawyer and researcher at Fundação getulio vargas, and Marilia Maciel, researcher and coordinator, Center for technology and Society, Fundação getulio vargas. Since 2009, a bill of law that aims to establish a Brazilian Civil Rights Framework for the Internet in Brazil (Marco Civil da Internet) is calling global attention and is being pointed as an avant-garde proposition that should serve as an example for other countries. The Brazilian Congress approved the bill on April 22, 2014, immediately before the Net Mundial – Global Multistakeholder Meeting on the Future of Internet Governance, which took place in São Paulo in April 23 and 24– and president Dilma Rousseff used the event to convert it into Law 12.965. This article presents a brief history of Marco Civil, indicates the main points of the law and analyses the relation of the law to the Internet governance structure in the country. In 2009, the Brazilian Internet Steering Committee approved a resolution consolidating a Charter of Principles for the Governance and Use of the Internet1. Almost at the same time, the Brazilian Congress was facing the uprising of civil society groups against a Cybercrime Bill presented by Senator Eduardo Azeredo. The Azeredo bill aimed to create, in Brazil, a legal framework for preventing and fighting cybercrime, inspired by the Budapest Convention, a polemic international treaty sponsored by the Council of Europe and approved in 2001, shortly after the September 11 attacks to the twin towers in United States. The bill raised serious concerns about privacy and surveillance among Brazilian Internet activists, as it established mandatory data retention for a period of five years for all ISPs in the country. Alongside with that, public interest groups voiced concerns that the bill could criminalize common and widely accepted behaviors and could amplify investigation powers in order to enhance the enforcement of Intellectual Property rights on the Internet. The reaction to the Cybercrime Bill came in the form of a proposal to regulate the Internet not by establishing crimes and penalties for its misuse, but by affirming principles, rights and responsibilities related to the use of the Internet. The proposal of building a Civil Rights Framework for the Internet, vocalized by civil society groups, academia and Internet activists, was received with enthusiasm by Government officials. In 2009, the Brazilian Ministry of Justice partnered with the Center for Technology and Society of the Getulio Vargas Foundation (CTS/FGV), to develop an online consultation process in which all the actors from Brazilian society would be able to identify the rights and responsibilities that should guide the use of the Internet in Brazil. The result of this process would be consolidated in a bill of law. The draft Bill was officially named Marco Civil da Internet (“Civil [Regulatory] framework for the Internet”, as opposed to a “Criminal framework”). The The proposal of building a Civil Rights Framework for the Internet, vocalized by civil society groups, academia and Internet activists, was received with enthusiasm by government officials. online consultation was divided into two periods, each of them spanning [1] The Brazilian Internet Steerring Committee Charter of Principles, in Portuguese, can be found here: http://cgi.br/resolucoes/documento/2009/003 [access on April 20, 2014]. 8 • LACTLD roughly 45 days. The first period of the consultation involved a debate about general principles (broadly inspired in the CGI Charter of Principles for the Governance and Use of Internet), which then served as reference for the writing of the text of draft Bill. These principles were divided into three groups: (1) individual and collective rights (privacy, freedom of speech, and access rights), (2) principles related to intermediaries (net neutrality and civil liability), and (3) governmental directives (openness, infrastructure, and capacity building). The draft text for the Bill, reflecting the suggestions received on its first phase, was then put under consultation for the second period. Contributions were received through a website hosted by Cultura Digital2, an online platform developed by the Ministry of Culture, with the goal to encourage the emergence of online communities for the discussion of public policies for the digital environment. Users were allowed to comment on the consultation texts, paragraph by paragraph, directly on the website. Nonetheless, blog posts, tweets, articles published in mainstream media, and institutional and individual contributions sent by email (and then made available to the public on the website) were also taken into consideration. Predictably, deliberations that involved the balance between conflicting rights and interests, freedom of speech, anonymity, privacy, law enforcement and access rights were the topics of heated and often rich debates during both stages of the consultation process. The process for the elaboration of Marco Civil shows the potential of the Internet to strengthen the participation of stakeholders on policy-making, in what is being considered a key moment for democracy worldwide. From the Middle East to the streets of Brazil, protesters on the streets have shown their will to influence democracy more closely and the need to renew and strengthen representation. During Marco Civil consultations, over 2,000 contributions, from individual users, governmental and non-governmental entities were received. NGOs, universities, internet service providers, business companies, law firms, law enforcement agencies, understood what were the main issues at stake in the Marco Civil, and defined the Net Neutrality provision as “the heart” of the Bill. In spite of the public support and legitimacy garnered by the Bill, once in Deliberations that involved the balance between conflicting rights and interests, freedom of speech, anonymity, privacy, law enforcement and access rights were the topics of heated and often rich debates. individuals, Brazilian Embassies from all over the world, and many other participants have joined the debate. The openness and transparency of the process, entirely conducted online, in the public eye, has improved the legitimacy of the text. The participation of several stakeholder groups has promoted the diversity of opinions and the availability of high quality information and expert advice, which have helped the government to draft a balanced bill.3 The final text that emerged from the consultation was presented to the Brazilian Congress in August, 24, 2011. It was divided into 5 chapters, concerning: (1) Preliminary Provisions; (2) User Rights and Guarantees; (3) Provision of Connection Services and Internet Services; (4) The Role of Public Authorities; (5) Final Provisions. The bill presented began by advancing users’ rights and some general principles for the regulation of the Internet before dealing with the issues of the preservation of connection logs, secondary liability for ISPs, and net neutrality, and then wraps with directives aimed at the public sector. In March 28, 2012, Deputy Alessandro Molon was indicated as the rapporteur for the Bill. Mr. Molon quickly Congress, the text got stalled. The draft legislation created collaboratively on the Internet would have to face strong lobbying efforts, from many different sectors. Members of Parliament from conservative parties and investigative authorities claimed for data retention provisions; broadcasters lobbied against any copyright flexibilization of their rights; ISPs and application providers praised safe harbor provisions, while Telcos strongly attacked the affirmation of net neutrality. The project did not seem to be a priority neither for the Brazilian Chamber of Deputies, nor the Executive, until the Snowden leaks on the NSA surveillance changed the whole political landscape. Amidst many abusive practices, the leaks revealed that the Brazilian President Dilma Rousseff was the target of espionage, alongside with Brazilian diplomatic missions and the State-owned oil and energy company, Petrobras. The Brazilian response to the Snowden revelations comprised both domestic and international measures. On the international level, Brazil and Germany introduced a resolution on Privacy on the Digital Age, approved by the United Nations4. Brazil also decided to host Net Mundial –a Global Multistakeholder [2] The contributions and debates made through the Cultura Digital platform can be found here: http://culturadigital.br/marcocivil/ [access on April 20, 2014]. [3] The first draft of the Bill, in English, can be found here: http://direitorio.fgv.br/sites/direitorio.fgv.br/files/Marco%20Civil%20-%20English%20Version%20sept2011.pdf [access on April 20, 2014]. [4] The resolution can be found here: http://www.un.org/ga/search/view_doc.asp?symbol=A/C.3/68/L.45/Rev.1 [access on April 20, 2014]. 9 • LACTLD doCuMENtS Meeting on The Future of Internet Governance– to identify a set of consensual set of Internet governance principles and to draw a roadmap for the institutional evolution of the Internet Governance ecosystem. On domestic level, President Dilma Rousseff issued on September 11, 2013, a Decree putting Marco Civil under an urgency procedure. By doing so, each of the legislative chambers would have 45 days to vote the bill. If they did not meet this deadline, the voting of all other bills under examination in Congress would be stalled, until they voted Marco Civil. In addition to this, the Government pressured the Rapporteur to introduce changes to the project, enhancing privacy protections and demanding all Service Providers to store data of Brazilians in the country. The urgency procedure put Marco Civil on the spot and accelerated the debate in the Brazilian Lower House. However, it was not sufficient to create the consensus necessary to vote the Bill. In order to preserve the Net Neutralilty provisions, Mr. Molon negotiated several aspects of the original text, including a data retention provision for applications providers5, directing the copyright enforcement on the Internet to the Copyright Act6 and expressly affirming the freedom to implement any business model as a principle7. Even though the changes were sufficient to isolate the Telco’s lobbying efforts, after 6 months, the project was still at the Chamber of Deputies, obstructing the agenda of the House. Worst than that, the pre-electoral period was approaching (with Federal and State elections in October) and the political bargains started to affect the government majority on the Chamber. It took great effort from government to unlock the agenda and approve the Bill on the Lower House, in March 25, 2014. Considering the organization of the Net The process for the elaboration of Marco Civil shows the potential of the Internet to strengthen the participation of stakeholders on policy-making, in what is being considered a key moment for democracy worldwide. Mundial Meeting in São Paulo, the Bill was quickly evaluated and approved, on April 22, by the Senate, and converted into law during the event on April 23. The key points of Marco Civil Luiz Fernando Moncau and Pedro Mizukami indicated on Infojustice.org8, in a short summary, the main provisions of the Marco Civil Law: • Data retention: Brazil was dangerously close to establishing a period of 5 years of mandatory data retention before discussions on Marco Civil began. Unfortunately, the bill still has provisions to that effect, but the period is much shorter for ISPs providing connectivity services (1 year). The bad news is that mainly due to aggressive pressure by the Federal Police, other Internet services –initially excluded from Marco Civil– are also subject to data retention (6 months). • Net neutrality: Brazil has taken a major step forward in preserving net neutrality, following the example set by countries such as Chile and the Netherlands. Marco Civil establishes the general principle that net neutrality should be guaranteed, and further regulated by a presidential decree, with inputs from both the Brazilian Internet Steering Committee (CGI.br) and ANATEL, the national telecommunications agency. Since telcos have a strong presence at ANATEL, the solution adopted by Marco Civil is arguably the best outcome, even if there is the danger of ineffective regulation further down the road. • Intermediary liability: one of the main provisions of Marco Civil deals with the difficult subject of intermediary liability due to content uploaded by third parties. the system in Marco Civil establishes that intermediaries can only be held liable if they do not comply with a court order explicitly demanding content to be removed. This regime, however, is not applicable to copyright infringement, which will be dealt with by the forthcoming copyright reform bill9. • Privacy: after the Snowden leaks, a small number of privacy provisions were included in Marco Civil (the main privacy and data protection bill under development has yet to be sent to Congress). The main proposal was extremely controversial: forcing Internet companies to host data pertaining to Brazilian nations within Brazilian territory. Broadly rejected by civil society, engineers, companies, and several legislators, the proposal was dropped by the government so that voting could take place. [5] The main players advocating for the data retention in the Marco Civil were the Brazilian Federal Police and other authorities. [6] The main players advocating for the removal of any copyright provision on the Marco Civil were the TV Broadcasters. However, during the period of consultation other groups submitted contributions claiming for stronger IP enforcement, such as collecting societies, IFPI and other Brazilian associations of copyright owners. [7] The main players advocating for the express mention of a freedom to develop any business model in the Marco Civil were the Telecommunications companies, probably with the objective of creating room for a more flexible interpretation of the Net Neutrality principle. [8] MONCAU, Luiz Fernando; MIZUKAMI, Pedro. Brazilian Chamber of Deputies Approves Marco Civil Bill. [9] The status of the copyright reform was detailed on an article of Mariana Valente and Pedro Mizukami in Infojustice, available on: http://infojustice.org/archives/31993 [access on April 20, 2014]. 10 • LACTLD • Rights and principles: Marco Civil establishes a strong, forward-looking assertion of rights and principles for Internet regulation in Brazil: freedom of expression, interoperability, the use of open standards and technology, protection of personal data, accessibility, multistakeholder governance, open government data. These provisions usually receive less exposure in media than the ones pertaining to more controversial topics. When taken as a whole, however, They express a strong commitment to an Internet that is an open, collaborative, democratic, space for individual and collective expression, as well as for access to knowledge, culture and information. As mentioned above, the Bill presented by Government and the final text approved into law are fairly different. Some changes made by the Parliament improved the quality of the text, while others are subject of deep concerns for public interest groups. On the negative side is the mandatory data retention for ISPs, which created a mechanism that can hardly be considered proportional and balanced, especially after the European Court of Justice, in a recent decision10, declared the EU Data Retention Directive invalid. Despite the existence of this specific point, the law has been recently pointed as an example to be followed by other countries11 by Frank La Rue, UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression. Marco Civil and Internet Governance The whole Marco Civil deliberation process and its approval is deeply linked to the Brazilian multistakeholder approach to Internet Governance. It is fair to assume that the possibility of a broad participation was extremely important to engage different players in the debate and, in the long run, to ensure that the engagement level endured Conclusion Although principles such as freedom of expression and privacy are already enshrined in the Constitution, Marco Civil shows how these principles apply to the online environment. The approval of Marco Civil will be very important for the Internet in Brazil for several reasons. First of all, although principles such as freedom of expression and privacy are already enshrined in the Constitution, Marco Civil shows how these principles apply to the online environment. The bill clarifies, for example, that the protection of logs is important from a privacy standpoint, something that is not self-evident, especially to individuals with no technical background. Secondly, the bill minimizes a situation of legal uncertainty, particularly regarding conflicting court decisions involving the content that is potentially problematic in order to avoid legal action. Indiscriminate content removal may be detrimental to fundamental rights, such as access to information and freedom of expression. Lastly, legal uncertainty stifles innovation and the flourishing of new business models online. Most actors, across all sectors, agreed that a legal framework for the Internet was needed, and the text was sent to Congress with boosted legitimacy and increased engagement from civil society, derived from the public consultation process. Nevertheless, during the entire process of the Bill in Congress, which took almost three years. In this perspective, the process can be taken as an example of the importance and great potential of multi-stakeholder involvement in policy-making. Beyond that, it is important to highlight how CGI (the Brazilian Internet Steering Committee) played a key role on the development of the Bill, on providing technical information to the Government and on translating technical issues to civil society and the broader public. The balanced approach of CGI to the bill may be attributed, to a greater or lesser extent, to the multistakeholder governance model adopted by the Committee. The whole Marco Civil deliberation process and its approval is deeply linked to the Brazilian multistakeholder approach to Internet Governance. legal responsibility of intermediaries. While some decisions consider platforms responsible for content uploaded by third parties, others introduce limits for their responsibility. In the face on vacillating decisions, companies remove this did not translate into smooth and swift discussions in Congress. The case of Marco Civil shows that institutional innovation is needed for traditional democracy to take full advantage of new possibilities created by technology. [10] The European Court of Justice decision is available on: http://curia.europa.eu/jcms/upload/docs/application/pdf/2014-04/cp140054en.pdf [access on April 21, 2014]. [11] More information, in Portuguese, available here: http://www.onu.org.br/projeto-brasileiro-de-marco-civil-da-internet-e-modelo-internacional-diz-relator-da-onu [access on April 21, 2014]. 11 • LACTLD