Internet governance: Brazil taking the lead in international debates

Read the full report in PDF:  [English] | [Portuguese]

Read the full report in PDF:  [English] | [Portuguese]

This is the third in a series of articles based on the Index report: Brazil: A new global internet referee?

Key debates are under way at international level on internet governance, with crucial decisions up for grabs that could determine whether the internet remains a broadly free and open space, with a bottom up approach to its operation – as exemplified in part by the multistakeholder approach – or becomes a top-down controlled space as pushed for by China and Russia, supported to some extent by several other countries.

In September 2013, the outrage following the revelations of mass surveillance by the US and UK led President Dilma Rousseff to announce that Brazil would host an international summit – NETmundial – on the future of internet governance in April 2014. This internet governance summit – progressive in appearance – took place just two years after Brazil voted in line with countries that have a tradition of internet control at a major international conference on telecommunications in Dubai.

This section looks at Brazil’s attitude in global internet governance debates and the potential contradictions between its domestic and foreign internet policies. In the aftermath of NETmundial and a year before Brazil is to host the 2015 Internet Governance Forum (IGF), this chapter also looks at Brazil’s ability to impose itself as a world leader in internet governance debates.

Is Brazil a swing state on global internet governance? Contradictions between domestic and international policies

What is at stake during the international discussions that shape the evolution and use of the internet has implications for all. The current multistakeholder approach for internet governance supposedly includes civil society and non-governmental actors in decision-making. It is a more bottom-up and multi-layered process, allowing a range of organisations to determine or contribute towards different parts of internet governance. The consultation process at the origin of the Marco Civil law is a possible example of the multistakeholder approach in action: Civil society, private companies, academics, law enforcement officials and politicians participated in the draft.

While Brazil has been pushing for stronger internet freedoms lately, especially at the domestic level, it has a history of going in the other direction. In December 2012, Brazil aligned with a top-down approach lobbied by countries that have a tradition of internet control at the Dubai World Conference on International Telecommunications (WCIT) summit. This meeting brought together 193 member states of the International Telecommunication Union (ITU) in part to decide whether or not and how the ITU should regulate the internet. On one side, EU member states and the US argued the internet should remain governed by an open and collaborative multistakeholder approach. On the other side of the divide, Russia, China and Iran lobbied for greater government control of the net. Brazil, along with the most influential emerging democratic powers (India the notable exception), aligned with this top-down approach.

This decision appeared in total contradiction with Brazil’s defence and implementation of the multistakeholder model at home with Marco Civil (see previous section on Marco Civil da Internet). At the time, the rapporteur of Marco Civil, Alessandro Molon, was opposed to the new ITU regulations and regretted that Marco Civil had not been adopted before the vote. While it is not unusual for any government to see a contradiction between domestic and foreign policy, Molon believed that the adoption of Marco Civil would have established without doubt Brazil’s policy and support for a transparent and inclusive approach to internet governance.

The reasons behind Brazil’s vote at the WCIT are obscure. First of all it is worth noting that most Latin American countries voted in favour of the text adopting new International Telecommunications Regulations. An analysis of the region’s vote shows that beyond governments’ intentions and goodwill towards the current multistakeholder governance model, to most Latin American governments, the new regulations were not about the internet but about telecommunications.  Most of these governments would have looked at the new ITRs to “reap some of the benefits of the ITRs as a whole”, especially in terms of technical facilities.  Second, like India, Brazil has increasingly expressed its desire to take on the US hegemony over the internet and digital technologies.  The clash between the two sides revealed at WCIT 2012 led The Economist to call WCIT 2012 a “digital cold war”. Brazil’s position is, however, more complex. Neither a supporter of the US nor Sino-Russian initiatives, Brazil has been seeking greater recognition in multilateral forums and has called for the rebalancing of international institutions.  As one of the new global economic powerhouses alongside Russia, India and China, but considered the most democratic of that group with India, aligning with countries supporting tighter government control was more a statement against internet governance by institutions seen as under US control – namely  ICANN (Internet Corporation for Assigned Names and Numbers) – and an assertion of Brazil’s sovereignty.

The revelations on mass surveillance activities carried out by the US further fuelled Brazil’s will to break from US-centric internet. Standing against mass surveillance, Brazil distanced itself from the top-down internet governance approach and called for an “open, multilateral and democratic governance, carried out with transparency by stimulating collective creativity and the participation of society, governments and the private sector.”

Shortly after announcing the organisation of an international conference to discuss the future of internet governance in response to the surveillance revelations, President Dilma Rousseff also ordered a series of measures aimed at greater Brazilian online independence and security. But what are the internet governance implications of that opposition to the US spying? By trying to get away from the US dominance of the internet, Roussef’s measures risk taking a regressive stance on the internet. Paradoxically, while asserting internet freedoms, the geopolitics behind Brazil’s response to mass surveillance could align it with countries pushing for top-down internet control both nationally and internationally.

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After Snowden: Brazil taking the lead and opposing mass surveillance – but at what cost?

In September 2013, President Dilma Rousseff made a strong political response to Snowden’s revelations on mass surveillance activities carried out by the United States. In a speech delivered to the UN General Assembly, Brazil’s president accused the NSA of violating international law and called on the UN to oversee a new legal system to govern the internet. Rousseff seized the momentum created by Snowden’s revelations to question the current multilateral mechanisms in place – such as ICANN – and announced that Brazil would host an international summit to discuss the future of internet governance in April 2014: NETmundial. ICANN has faced growing criticism in recent years about the influence of the US government on its operations. In this context, the efforts of Brazil in promoting digital freedom at domestic level with Marco Civil have helped the country gain a leading role and visibility in internet rights discussions. While India used to appear as a natural leader of the debate, discussions on Marco Civil and internet legislation have reached an international audience to the extent that Indian politicians now say “India has lost its leadership status to Brazil in the internet governance space”.

Not only is Brazil one of the countries with emerging influence in the multipolar world but it is also a state whose population is increasingly engaging with the internet. The decision to host NETmundial shows both Brazil’s stand against mass surveillance – at least officially – and its ambition to take the lead on internet governance debates.

The opposition to US-led mass surveillance led Brazil to propose a series of ambitious and controversial measures aimed at extricating the internet in Brazil from the influence of the US and its tech giants, in particular protecting Brazilians from the reach of the NSA. These included: constructing submarine cables that do not route through the US, building internet exchange points in Brazil, creating an encrypted email service through the state postal system and having Facebook, Google and other companies store data by Brazilians on servers in Brazil. While the first two were an attempt at developing internet infrastructure in Brazil, forcing tech giants to locate their data centres locally to process local communications would have big implications. Not only would it be very difficult to implement at a practical level, but it would not even protect Brazilians’ data from surveillance. On the contrary, data stored locally would be more vulnerable to domestic surveillance. This proposal – even made with good intent – was sending the wrong message, especially to other countries looking  to Brazil as a leader in this space. Engineers and web companies, who have their own agenda and economic interests, argued it would have a negative impact on Brazilian competitiveness, would be damaging for its tech sector and pose a threat of “internet fragmentation”. In terms of internet freedom, the measure set a dangerous precedent. Indeed, forced localisation of data relates more to measures undertaken by countries that have a reputation of internet control and repressive digital environments, such as China, Iran and Bahrain.

At a time when Brazil is gaining international exposure for defending internet freedom, it is important to stick to a progressive internet governance approach, including at the international level. The international summit on the future of internet governance – NETmundial – kicked off with Brazil reiterating its commitment to a “democratic, free and pluralistic” internet. The signing of Marco Civil da Internet into law by the Brazilian president onstage set the tone of the event: “The internet we want is only possible in a scenario where human rights are respected. Particularly the right to privacy and to one’s freedom of expression,” said Dilma Rousseff in her opening speech.  She added about Marco Civil: “As such, the law clearly shows the feasibility and success of open multisectoral discussions as well as the innovative use of the internet as part of ongoing discussions as a tool and an interactive discussion platform”.

The drafting process of Marco Civil and the inclusive consultation process that has involved civil society and private sector from beginning to end served as a model for the organisation of NETmundial. The unprecedented gathering brought together 1,229 participants from 97 countries. The meeting included representatives of governments, the private sector, civil society, the technical community and academics. Remote participation hubs were set up in cities around the world and the NETmundial website offered an online livecast of the meetings.

However, despite efforts to include civil society and despite Dilma Rousseff’s speech in favour of freedoms online and net neutrality, the geopolitics around the event and pressure from some governments and private sector led to a weak, disappointing outcome document.  The final version of the “Internet governance principles” document did not even mention net neutrality – a fundamental principle of the internet architecture. Disappointed and frustrated, many internet activists launched a campaign asking governments to take concrete actions to end global mass surveillance and protect the free internet. Some even came to question the  multistakeholder model of internet governance.

The multistakeholder model in question

Although the process for discussion adopted by NETmundial appeared inclusive, the multistakeholder model was criticised by internet activists and described as “oppressive, determined by political and market interests”. The balance of power and weak outcome document of NETmundial led them to call the principles of NETmundial “empty of content and devoid of real power”. La Quadrature du Net, which defends the rights and freedom of citizens on the web, called NETmundial international governance a “farce” and the multistakeholder approach an “illusion”.

Although Brazil made considerable efforts to offer an event open to civil society, academics, private sector and all governments, in reality the power of non-government actors, especially of civil society, is relatively weak next to the dominance of governments, tech giants and other powerful private corporations. And, as attractive as the rhetoric of liberty and freedom might be, intrusive governance is still regarded as acceptable by governments of all kinds – even those with apparently progressive attitudes towards an open internet. This is reinforced by fears of virtual crimes and cybersecurity, which are vital areas of government policy, as recently claimed by the Brazilian minister of communications Paulo Bernardo. In Brazil, as well as in India and other democracies, the balance between freedom and security can generate contradictory positions between international and domestic policies, and security arguments have often been used to justify claims for greater state control over critical internet resources, at the risk of falling into the game of repressive regimes.

The future of internet governance is still being discussed and Brazil is under the spotlight. It is not clear yet to what extent Marco Civil will lead to a safer and better online and offline environment. Meanwhile, Brazil should not support approaches that lead to top-down control of the net or forced local hosting of data. In the aftermath of NETmundial, Brazil appears more as a leader and influencer in the global debates on the future of internet governance. However, the outcome of NETmundial underlined Brazil’s vulnerability to pressure from the US, the EU and industrial interests. Brazil must continue to build on Marco Civil in the international sphere and use its clout to promote internet freedoms.

The full report is available in PDF: [English] | [Portuguese]

Part 1 Towards an internet “bill of rights” | Part 2 Digital access and inclusion | Part 3 Brazil taking the lead in international debates about internet governance | Part 4 Conclusions and recommendations

This article was posted on 16 June 2014 at indexoncensorship.org

When Google tripped: Forgetting the right to be forgotten

right-to-be-forgotten-screengrab

On May 13, the Court of Justice of the European Union (CJEU) held in Google Spain v AEPD and Mario Costeja González that there was a “right to be forgotten” in the context of data processing on internet search engines. The case had been brought by a Spanish man, Mario Gonzáles, after his failure to remove an auction notice of his repossessed home from 1998, available on La Vanguardia, a widely-read newspaper website in Catalonia.

The CJEU considered the application of various sections of Article 14 of EU Directive 95/46/EC of the European Parliament and of the Council of October 24, 1995 covering the processing of personal data and the free movement of such data.

A very specific philosophy underlines the directive. For one, it is the belief that data systems are human productions, created by humans for humans.  In the preamble to Article 1 of Directive 95/46, “data processing systems are designed to serve man; … they must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms notably the right to privacy, and contribute to … the well-being of individuals.”

Google Spain and Google Inc.’s argument was that such search engines “cannot be regarded as processing the data which appear on third parties’ web pages displayed in the list of search results”.  The information is processed without “effecting the selection between personal data and other information.”  Gonzáles, and several governments, disagreed, arguing that the search engine was the “controller” regarding data processing. The Court accepted the argument.

Attempts to distinguish the entities (Google Inc. and Google Spain) also failed. Google Inc. might well have operated in a third state, but Google Spain operated in a Member State.  To exonerate the former would render Directive 95/46 toothless.

The other side of the coin, and one Google is wanting to stress, is that such a ruling is a gift to the forces of oppression.  A statement from a Google spokesman noted how, “The court’s ruling requires Google to make difficult judgments about an individual’s right to be forgotten and the public’s right to know.”

Google’s Larry Page seemingly confuses the necessity of privacy with the transparency (or opacity) of power.  “It will be used by other governments that aren’t as forward and progressive as Europe to do bad things.  Other people are going to pile on, probably… for reasons most Europeans would find negative.”  Such a view ignores that individuals, not governments, have the right to be forgotten.  His pertinent point lies in how that right might well be interpreted, be it by companies or supervisory authorities. That remains the vast fly in the ointment.

Despite his evident frustrations, Page admitted that Google had misread the EU smoke signals, having been less involved in matters of privacy, and more committed to a near dogmatic stance on total, uninhibited transparency. “That’s one of the things we’ve taken from this, that we’re starting the process of really going an talking to people.”

A sense of proportion is needed here.  The impetus on the part of powerful agencies or entities to make data available is greater in the name of transparency than private individuals who prefer to leave few traces to inquisitive searchers.  Much of this lies in the entrusting of power – those who hold it should be visible; those who have none are entitled to be invisible.  This invariably comes with its implications for the information-hungry generation that Google has tapped into.

The critics, including those charged with advising Google on how best to implement the EU Court ruling, have worries about the routes of accessibility.  Information ethics theorist Luciano Floridi, one such specially charged advisor, argues that the decision spells the end of freely available information.  The decision “raised the bar so high that the old rules of Internet no longer apply.”

For Floridi, the EU Court ruling might actually allow companies to determine the nature of what is accessible.  “People would be screaming if a powerful company suddenly decided what information could be seen by what people, when and where.” Private companies, in other words, had to be the judges of the public interest, an unduly broad vesting of power.  The result, for Floridi, will be a proliferation of  “reputation management companies” engaged in targeting compromising information.

Specialist on data law, Christopher Kuner, suggests that the Court has shown a lack of concern for the territorial application, and implications, of the judgment.  It “fails to take into account the global nature of the internet.”  Wikipedia’s founder, Jimmy Wales, also on Google’s advisory board, has fears that Wikipedia articles are set for the censor’s modifying chop.  “When will a European court demand that Wikipedia censor an article with truthful information because an individual doesn’t like it?”

The Court was by no means oblivious to these concerns.  A “fair balance should be sought in particular between that interest [in having access to information] and the data subject’s fundamental rights under Articles 7 [covering no punishment without law] and 8 [covering privacy] of the Charter.”  Whether there could be a justifiable infringement of the data subject’s right to private information would depend on the public interest in accessing that information, and “the role played by the data subject in private life.”

To that end, Google’s service of removal is only available to European citizens.  Its completeness remains to be tested.  Applicants are entitled to seek removal for such grounds as material that is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed.”

An explanation must accompany the application, including digital copies of photo identification, indicating that ever delicate dance between free access and anonymity.  For Google, as if it were an unusual illness, one has to justify the assertion of anonymity and invisibility on the world’s most powerful search engine.

Others have showed far more enthusiasm. Google’s implemented program received 12,000 submissions in its first day, with about 1,500 coming from the UK alone.  Floridi may well be right – the age of open access is over. The question on who limits that access to information in the context of a search, and what it produces, continues to loom large.  The right to know jousts with the entitlement to be invisible.

This article was published on June 2, 2014 at indexoncensorship.org

Both Google and the European Union are funders of Index on Censorship

 

The importance of a loyalist theatre

Tartan-image-2-640x528-large.jpgFor the last two decades the stubborn, powerful myth that the creative arts and the Protestant working class in Northern Ireland do not go together has been regularly proclaimed.

Closer reading reveals a plethora of Protestant dramatists including, but not limited to: Sam Thompson, Stewart Parker, Ron Hutchinson, Christina Reid, Graham Reid, Marie Jones, and Gary Mitchell. This is of course a typically unfortunate sectarian head-count, but a necessary one in light of matter-of-fact declarations from Irish Republicans that Ulster Protestants have ‘no culture’, and – perhaps more damagingly – the identical conviction of a large number of working class Protestants themselves.

With this is mind it is worth distinguishing between ‘loyalist’ and ‘Protestant working class’ voices. The phrases have become interchangeable (despite the way the Protestant electorate has long given loyalists the cold shoulder), and many local and international commentators in the media and academia continue to refuse the distinction. On the other hand, with the exception of the lively 1982 community play This is It!, loyalists are indeed without any real lineage in the theatre.

It is therefore vital that Ulster loyalists take their place on the stage, a process which began on 1 May when Bobby Niblock’s play Tartan opened in East Belfast’s Skainos Centre before going on to close the city’s Cathedral Quarter Arts Festival. A production of the recently-formed Et Cetera theatre company, this was an avowedly loyalist exercise in the sense that Niblock is an ex-prisoner depicting one of its stories. Initially the Tartans fought other gangs from within the same community but many went on to join loyalist paramilitary groups, a difference and tension the play explores.

At an Index on Censorship symposium held in the University of Ulster’s Belfast campus on 3 May, I was charged with leading one of four breakout sessions exploring why loyalist voices are under-represented in the theatre. The challenge facing the Et Cetera group was brought home when only one person from this comfortable set showed up, perfectly encapsulating part the problem. The one major complaint of loyalists in post-Troubles Northern Ireland is that their voice is simply ignored. I was initially apprehensive about spearheading a discussion even mentioning ‘loyalism’, as it is now a pejorative term of abuse. The way the conference attendees reacted typically reflects the complete unwillingness to engage with this disillusioned section.

Many loyalists have hitherto been convinced that the best way they can make their voices heard is to block roads and intimidate. They feel the ‘peace process dividend’ has nothing to offer them, while report after report pitches the Protestant working class male right at the bottom of the educational attainment table (only just in front of Irish traveller and Gypsy/Roma, according to the latest Peace Monitoring Report). These are the men who find themselves languishing in the back of police vans and holding cells at the end of an evening of rioting, as well as being the first target for the paramilitaries.

No-one would be so naïve as to believe that a play alone could stop violence, but seeing a play – like all art – can soften human beings as well as advance understanding. The late Seamus Heaney once said of his own medium that ‘It can eventually make new feelings, or feelings about feelings, happen’, and the creative process often leads to self-examination. In Tartan two young men reflect while they assemble a crate of petrol bombs: it’s their future they’re on the verge of hurling away along with the incendiaries. A diversity of viewpoints are similarly on show. Some of the boys are already hard-liners; others remind us that most Catholics don’t support the IRA. While empathetic to its young, exploited protagonists, it is also upfront about their mistakes and prejudices.

Tartan has flaws – including a noticeably stronger second half – but it is one hell of an opening salvo. The energy of these young males reverberates off the stage, giving speech and form to a violence which continues to scar the North’s streets, as well as highlighting the essence of the Et Cetera group itself: as an outlet for new stories and energies previously untapped.

The dangers of a loyalist underclass are unlikely to be apparent to an English or international audience. They remain rather less deadly than dissident republicans, but Tartan’s relevance – anchored in the perspective of misled young Protestant men – becomes especially resonant in the wake of the increased recruiting and activities of the most serious loyalist paramilitaries.

The Man Who Swallowed a Dictionary, a play about David Ervine – another ex-prisoner who died prematurely of a heart attack in January 2007 – is Niblock’s follow-up project. Earning this (provisional) title in real life for being articulate in a culture which does not value articulacy, Ervine served his sentence in the same prison as Niblock and had represented one of the few political voices for disempowered loyalists. The loss was enormous, but the return of this voice is next.

This article was originally posted on May 30, 2014 at indexoncensorship.org

Hush — slander is a criminal offence in India

Nitin Gadkari, party chief, Indian opposition Bharatiya Janata Party (BJP), during their workshop on Minorty Welfare through good governance, organised by the Indian opposition party (BJP) in New Delhi. (Photo: Amit Kumar / Demotix)

Nitin Gadkari, a politician with a chequered, if not dubious record of integrity and probity, had a political opponent arrested for slander. (Photo: Amit Kumar/Demotix)

Once, President Lyndon Johnson was caught in the crossfire of an anti-Vietnam war protest. A placard was shoved in his face: “LBJ pull out, like your daddy should have done.” Sure, LBJ got the pun, as would have Anthony Weiner in our present times, but he remained unperturbed. Consider Lady Violet Bonham Carter’s biting repartee to an irresolute Sir Stafford Cripps, saying he “has a brilliant mind — until it is made up”.

Mordant wit is what makes politics and political debates sparkle with brilliance, besides deflating windbags and putting stuffed shirts in their place. Even if the “sourcasm” is discounted, plainspeak and no-holds barred verbal duels contribute in no small measure to ensuring accountability, for who isn’t mortally petrified of lacerating criticism?

Turns out that in India, folks with brittle egos and skeletons stacked up in their closets, can and will wield the law to clam a critic’s mouth shut, and even have them put in jail. And this is irrespective of resorting to some risqué puns.

Arvind Kejriwal, founder of the Aam Aadmi (Common Man) Party, who is out on a limb to eradicate the scourge of corruption, realised this to his peril when Nitin Gadkari, a politician with a chequered, if not dubious record of integrity and probity, had him arrested for slander. Slander? No, Gadkari wasn’t invoking some law of the Middle Ages or the Victorian Era. He was merely invoking Sections 499 and 500 of the Indian Penal Code which criminalise defamation, both in writing as well as verbal statements. Kejriwal called Gadkari “corrupt” because not very long ago, the latter did come under the scanner for alleged massive illegalities in his business dealings, but managed to wriggle out since no legal investigation or prosecution were launched.

These two provisions are so broad in scope that every insinuation, unless proved to have been made in “good faith”, can land someone in prison. Someone like Kejriwal, who was incarcerated for six days until he was let out on bail yesterday. Now how does one prove “good faith”, that too, “beyond reasonable doubt”, since that remains the standard of proof in criminal law? Worse, a person can be taken into custody even while this seemingly Herculean task is getting done.

As if criminalisation of libel isn’t bad enough, punishing “slander” grants almost instant impunity if one is strategic enough. Take Kejriwal’s example, again. In October and November last year, he addressed a press conference and read out from a list of charges against business tycoon Mukesh Ambani. The businessman lost no time in slapping legal notices against every television channel which broadcast the conference. Libel chill, without a shred of doubt, for all the channels went silent. Whether Ambani’s fleece is as white as snow isn’t the question; his dark deeds of pulverising criticism are, and deserve the most trenchant critique.

It is encouraging to note that already demands are being made for decriminalising libel, but unless slander is banished from the statute books, dangers would continue to lurk. The Law Commission of India has taken a laudatory and timely step by releasing a consultation paper which seeks to unshackle the media from apprehensions of libel chill. But what happens to individuals — political activists, or whistleblowers? A possible solution lies in Gertz v. Robert Welch, Inc. wherein the Supreme Court of the United States extended the Sullivan privilege (named after the legendary NYT v. Sullivan case) — that only statements made with naked malice or reckless disregard for the truth shall be held as defamatory — available to media houses, to certain categories of individuals also. Those “seeking governmental office” and those who “occupy positions of such persuasive power and influence that they are deemed public figures for all purposes” were accorded protection. Recently, this has been adopted in international money laundering law of PEPs or Politically Exposed Persons. It includes, “individuals who are or have been entrusted domestically with prominent public functions, for example, heads of state or of government, senior politicians, senior government, judicial or military officials, senior executives of state-owned corporations, important political party officials”.

Back in 2011, the UNHRC (United Nations Human Rights Committee) issued a declaration condemning Philippines’ provisions of criminal libel as a violation of the ICCPR.  One hopes India wouldn’t require such a slap on the wrists to amend the repugnant law which rewards dishonest claims of calumny.

This article was published on May 29, 2014 at indexoncensorship.org