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Brazil: Cybercrime Law Could Restrict Fundamental Rights, Internet Openness

Pending in Brazil’s House of Representatives is a proposed cybercrime law [pt] that could criminalize many ordinary online activities and that would mark an abrupt shift in Brazil’s progressive digital policy environment. The Committee on Science and Technology will vote on the bill on November 9, 2011.

Under the proposed law, PL 84/99, sponsored by Representative Eduardo Azeredo, courts could apply criminal penalties to activities like file sharing, peer-to-peer communications, and the fair use of copyrighted works. Internet Service Providers (ISPs) and sites like YouTube and Flickr could become liable for unlawful content posted by their users. And ISPs, email service providers, and other Internet intermediaries would be obligated to collect and retain users’ personal data for extended periods of time. Scholars, civil society leaders, and advocates for digital rights have spoken out against the bill, arguing that the law would interfere with citizens’ rights to free expression and privacy and restrict the openness of the Brazilian Internet.

International Free Software Forum 2011, Porto Alegre. By Anon DePlume. CC BY-SA.

Researchers at the Centro do Tecnología e Sociedade [pt] (Center for Technology and Society) of the Fundação Getulio Vargas, Brazil’s premier social science research institution, have circulated ample analysis calling attention to problems in the bill. Mega Não [pt], a collective of digital rights activists and scholars who advocate for Internet openness and strong online privacy laws, worked with stakeholders to compose a 2008 petition [pt] illustrating the bill’s problems and urging legislators to vote against it. The petition emphasized the importance of balancing the nation’s security interests with fundamental rights and the broader trajectory of Brazil’s information society:

Não defendemos o plágio, a cópia indevida ou o roubo de obras. Defendemos…liberdade de troca, o crescimento da criatividade e a expansão do conhecimento no Brasil. [...] [Esse projeto] Projetos como esses…colocam o país definitivamente para debaixo do tapete da história da sociedade da informação no século XXI.

We do not advocate plagiarism, improper copying, or theft of works. We defend…free exchange, the growth of creativity, and the expansion of knowledge in Brazil. […] Bills like this one…will take the history of [Brazil’s] information society in the 21st century and sweep it under the rug.

The petition received over 160,000 signatures and prompted legislators to hold a series of public hearings on the bill before allowing it to move forward in the legislative process. Speaking at the International Free Software Forum conference in Porto Alegre in 2009, former President Lula Ignacio da Silva said of the bill [pt],

Essa lei não visa corrigir abusos na internet. Ela quer é fazer censura. Precisamos é de um código civil para determinar as responsabilidades na internet, mas não proibir.

This law does not aim to curb [criminal activity] on the Internet. Its aim is to censor. What we need is a civil code to determine [legal] responsibilities on the Internet, not to prohibit [ordinary activity].

US-based advocates for Internet openness and privacy including the Center for Democracy and Technology (CDT) and the Electronic Frontier Foundation (EFF) have also raised concerns about the bill.

The proposed law would undercut many of the positive developments in Brazilian Internet policy that have taken place in recent years. Under Lula, Minister of Culture and singer-songwriter Gilberto Gil worked to increase Internet access and supported expansion of digitally-based educational and cultural programs for Brazilians. The International Free Software Forum, Creative Commons, the Peer-to-Peer Foundation, and other leading innovators partnered with the Ministry of Culture and held events in Brazil, making the country a global hub for Internet openness.

In tandem with these developments, lawmakers drafted a digital “bill of rights” or civil regulatory framework, known as the Marco Civil da Internet. The full text of the bill of law is available in English, Portuguese, and Spanish. Developed through numerous consultations (both online and offline) between lawmakers, scholars, and digital rights advocates, the Marco Civil da Internet represents a balance of the right to freedom of expression with the interests of privacy and security. The bill establishes a clear set of rights and responsibilities for users, sets strong net neutrality principles, and shields intermediaries from criminal liability for user-generated content. Congress has yet to vote on the legislation; the Azeredo Law currently sits higher on the Congressional agenda than the Marco Civil, but should members of Congress call for further deliberation concerning the PL 84/99, this could change.

Under the new administration of President Dilma Rouseff, who took office in January of 2011, Minister of Culture Ana de Hollanda has signaled that she will likely diverge from Gil’s policy agenda. She startled the digital rights community by removing the Creative Commons license from the Ministry’s website during her first days in office.

As part of its partnership with the Centro da Tecnologia y Sociedade (CTS), CDT has issued comments on PL 84/99, analyzing its provisions under international and regional human rights law and comparing PL 84/99 with the Council of Europe’s Convention on Cybercrime, which Representative Azeredo has referred to as the “inspiration” for the bill. The key points of the CDT memorandum are as follows:

  • PL 84/99 would criminalize the violation of an “express access restriction” to a computer, network, or online service. The language used in the bill is so broad that it could criminalize violations of the “terms of service” of websites or other online services.
  • PL 84/99 would criminalize obtaining or transferring data from a system or network protected by an “express access restriction.” This could criminalize activities such as file sharing and transferring data from one device or system to another.
  • PL 84/99 could generate legal consequences for intermediaries—ISPs, hosts, or platforms for user-generated content—that facilitate, unknowingly and unintentionally, the “unauthorized” transfer of data or the dissemination of malicious code.
  • PL 84/99 would obligate intermediaries to retain user data for law enforcement purposes, a measure that would also interfere with the citizen’s right to privacy.

Over the past decade, Brazil has pioneered a digital policymaking approach that countries all over the world have looked to as a model for promoting innovation and openness online. CTS and CDT urge digital rights advocates in Brazil and throughout the Americas to oppose PL 84/99, and to support the efforts of Brazilian legislators and civil society leaders working to maintain Brazil’s vibrant information society.

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