When the time came to draft an important new “Internet bill of rights,” Brazilians took matters into their own hands.
- By Daniel O'MaleyDaniel O’Maley is Associate Editor at the Center for International Media Assistance at the National Endowment for Democracy. As a political anthropologist, he has studied the intersection of technology and democracy.
Brazil is in a state of political turmoil. An investigation into a decades-old kickback scheme at the state-owned oil company, Petrobras, has entangled prominent politicians and leading business figures alike. President Dilma Rousseff is facing impeachment — and a leading proponent of her removal, Eduardo Cunha, the head of the lower house of Congress, is under a corruption investigation himself. So it was not surprising when a 2014 Pew Global Attitudes survey revealed that 72 percent of Brazilian respondents were unsatisfied with the current state of affairs in their country, up more than 20 percent from just four years earlier. Since June 2013, millions of Brazilians have taken to the streets to protest rising public transportation costs, poor quality public healthcare and education, and excessive government spending on stadiums for the 2014 World Cup and the 2016 Olympics. In short, there is a growing sense among Brazilians that their political system is broken.
With this in mind, Brazil might seem like an odd place to look for promising examples of innovations in democratic governance. But the country’s political dysfunction has prompted civil society activists to explore new mechanisms to enable citizens to participate in policymaking more actively. The passage of the Marco Civil da Internet, an “Internet bill of rights” commonly referred to in English as the Brazilian Civil Rights Framework for the Internet, demonstrates how the Internet, and social media in particular, can be marshaled to rejuvenate democratic governance in the digital age. The law is important not only for its content, but for the innovative and participatory way it was written, bypassing traditional modes of legislation-making to go directly to the country’s citizens. As a result, it is responsive to citizens’ concerns and freer of the undue influence of corporate lobbyists. At a moment when governments of all kinds are viewed as increasingly distant from ordinary people, Brazil’s example makes a persuasive argument that democracy offers a way forward.
Rousseff signed the pioneering law in April 2014 at the NetMundial summit in São Paulo, where global policymakers had gathered at her urging to discuss the future of the Internet. The law has three components. First, it safeguards privacy by restricting the ability of private corporations and the government to store Internet users’ browsing histories. Second, it mandates a judicial review of requests to remove potentially offensive or illegal material, including content that infringes copyrights. And third, it codifies net neutrality — a principle that prohibits Internet service providers from manipulating data transfer speeds for commercial purposes. For moving to preserve an open Internet that many consider increasingly threatened, the bill was hailed by activists — including the creator of the World Wide Web, Tim Berners-Lee, who was in attendance — as an example the rest of the world should follow.
The demand for a Brazilian Internet rights law emerged among the country’s civil society activists in 2007 and 2008. At the time, they were protesting a cybercrimes bill then making its way through parliament. That bill was championed by banking and IT lobbyists who argued that it would make Brazil more attractive to foreign investment by combating digital piracy and internet fraud. Critics, however, argued that it would increase monitoring of innocent citizens and severely criminalize sharing music and videos online, a common practice in Brazil.
One of the chief critics of the cybercrimes bill, legal scholar Ronaldo Lemos, argued that rather than criminalizing behavior on the Internet, Brazil’s congress should first pass a fundamental document clearly establishing the rights of citizens online. This became a rallying cry for Internet freedom activists, who launched a massive online petition against the cybercrimes bill. The petition spread virally on social media and eventually gained more than 150,000 signatures. In 2009, then-president Luiz Inácio “Lula” da Silva responded to this outcry by declaring his opposition to the cybercrimes bill and endorsing the idea of an Internet rights law — the Marco Civil da Internet.
What makes this law even more interesting is that it became one of the largest-ever experiments in crowdsourcing legislation. The law’s original text was drafted through a website that allowed individual citizens and organizations — including NGOs, businesses, and political parties — to interact with one another and publicly debate the law’s content. This open, interactive, and collaborative process relied on a belief that the collective intelligence would both improve the final product and prove less beholden to powerful corporate lobbies. This drafting process was markedly different than the traditional method of drafting bills “behind closed doors” in the halls of Congress, a process that that favored well-connected families and large corporations.
The task of overseeing the drafting of the Internet bill of rights fell to a handful of lawyers in the Ministry of Justice. Normally, a team of government lawyers drafts legislation after consulting with relevant parties (often lobbyists) and then sends it to lawmakers for debate. But this time the bureaucrats — who happened to be a young and tech-savvy group — decided to try something different. Considering the bill’s subject matter and the popularity of social media in Brazil, they chose a more innovative form of drafting legislation. Using social media to capture citizen input had been tried before, but never on this scale, in a country of roughly 200 million people. Whether it would succeed was far from certain.
In October 2009, the Ministry of Justice created an interactive website where citizens could log in to discuss which issues should be included in the bill. During the website’s public launch, one of the government lawyers, Pedro Abramovay, summed up the organizers’ high hopes: “This experience could transform the way we discuss not just legislation about the Internet but the way we discuss other bills in Brazil, and, in so doing, reconfigure our democracy.”
Ultimately, hundreds of citizens, including many of the activists who had mobilized against the cybercrimes bill, participated in the drafting process. After receiving their initial input, a team of lawyers translated the ideas into more traditional legal language. A second round of online participation was launched in April 2010 to solicit public feedback on the bill’s final text. It was at this point that its three main policy components (privacy, digital copyright, and net neutrality) were finalized.
The crowdsourcing scheme was not without its challenges. First, encouraging citizens to participate in the highly technical policy debate was difficult. An analysis by Brazilian sociologists showed that in the first phase of the online participation process, two individuals contributed over two-thirds of all 636 comments. This indicates that securing broad participation was difficult. Second, not all of those involved embraced the open, transparent process. Corporate lobbyists largely avoided the website when submitting their feedback, instead sending letters directly to the Ministry of Justice, as they normally would. One of the government lawyers, Guilherme Almeida, told me that he made a point of posting these letters on the public website so that the lobbyists’ input could be incorporated into the public debate. Nonetheless, it’s clear that traditional interest groups still sought special treatment.
In the end, the bill was extremely popular among the civil society activists who had originally fought for its creation. By 2011, it was passed on to the legislature, where it faced strong resistance, particularly by politicians with close ties to the telecommunications sector. Principal among the bill’s opponents was Congressman Eduardo Cunha, a former telecommunications executive and one of Brazil’s most powerful lawmakers. He almost single-handedly blocked the bill’s progress for two years.
Only after the extent of the NSA’s mass surveillance was revealed by Edward Snowden in June 2013 did the Internet rights law once again gain attention as world leaders focused on Internet governance. The fact that President Rousseff was herself targeted prompted her to make the bill’s passage a key priority of her administration. In a speech at the U.N. General Assembly in September 2013, the former left-wing guerilla and political prisoner declared that “in the absence of the right to privacy, there can be no true freedom of expression and opinion, and therefore no effective democracy.” For Rousseff, the passage of the Marco Civil da Internet would represent Brazil’s repudiation of the use of the Internet for citizen surveillance and international espionage.
Cunha’s opposition to the bill in congress remained firm. But by March 2014, it had become clear that Rousseff was unwilling to make any significant concessions, and he finally allowed the bill to come up for a vote. It was passed in the lower house with only 17 of 513 representatives voting against it. A few weeks later, it passed the senate unanimously.
The new law gained worldwide attention both for its content and for how it was created. Italian politicians were so impressed that they decided to crowdsource their own Internet bill of rights, the first such case in Europe. The case of the Marco Civil da Internet thus demonstrates how new forms of citizen participation through the Internet can reinvigorate the democratic process. At the same time, it also shows that such initiatives only succeed when backed by political will.
The passage of the law established important legal principles for safeguarding users’ rights. But it’s also become clear that, in addition to having good laws on the books, countries need strong and competent institutions that implement new technology policy effectively. Though the Internet bill of rights has been in force for over a year, regulators have not yet decided how to enforce its net neutrality provisions. Moreover, Brazilian judges have yet to fully comprehend the law’s meaning, which has resulted in a few draconian rulings. In December 2015, a Brazilian judge ordered the popular WhatsApp messaging service shut down for 48 hours in Brazil because the service did not comply with a previous judicial order. In her brief, she cited language in the Marco Civil da Internet as legal justification. However, when Facebook (which owns WhatsApp) appealed, an appellate judge correctly overturned the order and noted that the Marco Civil was actually meant to prevent such heavy-handed legal orders. Opponents of the law, including Cunha, have regrouped and are attempting to pass new legislation that would effectively gut some of its key provisions, particularly protections on Internet user privacy. But perhaps this furious opposition is just more evidence that the law has made a real difference.
There are now efforts underway in Brazil to formalize online participation in policy development via government websites like the executive branch’s Dialoga Brasil website and congress’s Portal e-Democracia, but there has been no high-level success story since the passage of the Marco Civil da Internet. As citizens around the world demand more openness and accountability from their governments, politicians should learn from the success of this remarkable law.
In the photo, students protest against the Eduardo Cunha, head of the lower house of congress, in Brasilia on November 13, 2015.
Photo credit: EVARISTO SA/AFP/Getty Images