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Brazilian Internet is Partly Free

29 novembre 2016

Freedom House, an independent organization dedicated to the expansion of freedom and democracy around the world, published its 2016 report on Internet freedom. The results are not auspicious. According to the study, the main conclusions are:

Internet freedom around the world declined in 2016 for the sixth consecutive year.

Two-thirds of all Internet users – 67 percent – live in countries where criticism of the government, military, or ruling family are subject to censorship.

Social media users face unprecedented penalties, as authorities in 38 countries made arrests based on social media posts over the past year. Globally, 27 percent of all Internet users live in countries where people have been arrested for publishing, sharing, or merely “liking” content on Facebook.

Governments are increasingly going after messaging apps like WhatsApp and Telegram, which can spread information quickly and securely.

Unfortunately, Brazil has contributed to this result. In 2014 and 2015, Brazil was considered, by the same organization, a « free internet country ». However, it was downgraded because of several events that took place last year, namely the blocking of WhatsApp in the entire country for three times.  

Because text messaging in Brazil is very expensive, Brazil is a heavy user of WhatsApp. After allowing its users to record voice messages and make phone calls through the app, WhatsApp became even more popular. As one can imagine, this huge popularity for a foreign mobile phone app has not come trouble-free from the point of view of Brazilian regulators.  As an example, for several times, Brazilian courts have demanded that WhatsApp provides personal information from its users to allow crime investigations. However, WhatsApp informed that due to cryptography, they do not have access to the content of conversations neither do they store it on their servers.

After such denial from WhatsApp, Brazilian courts demanded that the app be blocked in the whole country, alleging infringement of the Marco Civil, although, as we have extensively defended, Brazil’s Internet Bill of Rights is not to blame for the takedown of WhatsApp.

The three times in which the app was blocked (February/2015; December/2015; July/2016), higher courts promptly reversed the decision. However, it also evidences the fragility of our laws, as well as how we respond to authoritative decisions regarding Internet regulation.  In addition, it is not only a matter of court rulings, but it is also a legislative issue. Here is the summary of the report that considered Brazil a partly free internet country:

Popular communication application, WhatsApp, was temporarily blocked on two occasions during this period, on December 2015 and May 2016, after Facebook, which owns the encrypted messaging service, was unable to comply with requests to turn over data pertaining to users under criminal investigation. While higher courts quickly overturned these orders, they disproportionally impacted users across Brazil.

Some of the largest internet service providers in Brazil announced that they would introduce data caps for fixed broadband, prompting widespread outrage and several bills in Congress to limit practices that are deemed to be unfair to consumers.

A report by a Parliamentary Investigation Commission proposing a series of cybercrime bills caused significant backlash among civil society and scholars.

Since the adoption of the so-called “Constitution for the Internet” in April 2014, secondary legislation enacted in May 2016 further refined rules for net neutrality and security measures regarding connection logs stored by providers.

As a friend of mine reminded me on Facebook, we have to be somewhat skeptical about rankings. However, the relevance here is not the position where Brazil stands or even the overall score Brazil achieved. The reasons for which Freedom House considers Brazil a « partly free » country regarding internet are extremely worrying. We must be careful and attentive for next steps of Brazilian Congress. If it is already difficult to engage on a narrative dispute before courts do decide which interpretation of a balanced law should prevail, one can imagine how hard it will be if the law is restrictive and authoritarian. We still have a long way to go in order to reach Estonia, Iceland and Canada, the three top countries on Freedom House report.

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