The present moment asks for urgent decisions that still have to be well planed otherwise being innocuous or, even worse, delaying national development. To take good decisions, perspectives of different sectors – technical, academic, business and civil society – should be taken into account.

By Marília Maciel and Luiz Fernando Moncau *

Introduction

All over the world, the revelations made by Edward Snowden about the communication surveillance carried out by the NSA – National Security agency – not only caused intense discussions, but also influenced the governmental agenda.

In Brazil, Snowden’s complaints altered not only the legislative agenda, but also triggered government initiatives whose objective would be to promote more safety to Brazilian communications. In the South American scope, conjunct answers were quickly articulated at the Union of South American Nations (UNASUR) and Southern Common Market (Mercosur) forums. The subject was also taken to the United Nations Security Council by the countries of the region, and there is a desire to expand the discussion to other UN forums, such as the Human Rights Council.

1) Legislative Agenda

As seen in an article published on the last edition of the Digital Rights LAC , one of the more evident impacts of Snowden´s revelations was related to the legislative process of the “Marco Civil da Internet” Bill. The U.S. espionage program brought the media’s and the Congress’ attention to matters such as privacy and communications security. The government´s wish to be portrayed as active and diligent has made him propose modifications to the Bill aiming to reinforce citizens’ privacy and to mitigate the possibility of espionage. However, the proposed modifications do not create significant impact.

One of such modifications, advocated by the Minister of Communications, Paulo Bernardo, was to include on the Marco Civil Bill a provision determining that internet companies that provide services in Brazil should store Brazilian citizen’s data at Brazilian territory. However, it has to be considered that hosting data in Brazil could be far more expansive than hosting it in American servers, for example. The high cost of hardware and backbone access and the smaller broadband coverage in Brazilian territory are some factors that impact the costs. Even Brazilian companies frequently host data abroad.

If the government wishes to retain data at Brazilian territory, the best approach would be to create market incentives through cost reduction. Nevertheless, holding data in Brazil is not a guarantee of safety, for at least three reasons. Firstly, hardware of foreign origin might contain backdoors that allow espionage by those who know these weak spots. Secondly, the communications content that navigates thought international infrastructure would remain vulnerable, since there are ways to capture data directly from submarine cable or satellites. And lastly, it is worth considering that data nationally hosted could be subjected to surveillance by actors inside the Brazilian State. It is important to remember that Brazil doesn´t have, to present date, a legal instrument that protects privacy and personal data of its citizens.

Despite being problematic and ineffective, everything indicates that the proposal of holding data at the Brazilian territory will be defended by the Federal Government at the Marco Civil voting. President Dilma Rousseff requested  at September 11 constitutional urgency for the Bill´s legislative procedure. As a result, the project should be voted in 45 days at the House of Representatives. Afterwards, the Senate will have 45 days to discuss and vote the approved text. Depending on Dilma´s government official position, the Bill that was built collaboratively with society might be transformed.

2) Investments and government programs

Besides the impact on the legislative procedure of the Marco Civil, the Snowden case may affect directly some Brazilian policies related to innovation and to public investment in technology. The developing of national technology has been a major concern of the Brazilian government, which launched medium to long terms incentive programs, such as the “Start-up Brazil”.  Besides, there are investments in communication infrastructure such as the satellite area and internet exchange points (IXPs) in South America.

The negative impact of President Dilma Rousseff´s communication surveillance, however, made Brazil take urgent, hasty measures, which might have little practical impact. These include the development of a national e-mail service under the responsibility of the Brazilian Company of Mail and Telegraph, one of the biggest state-owned firms in Latin America, which is responsible for the postal services in Brazil. The development of national technology is welcome, but this won´t protect Brazilian´s privacy while social networks continue to cooperate with the NSA, besides hardware and international infrastructure that allow espionage.

Although there are no solutions of short or medium terms to the spying problem, the development of national platforms could contribute not only to the technological development, but also to encourage the usage of open technologies, that are more transparent and verifiable. This is the case of free software, which allows the analysis of the code and the identification of eventual failures and backdoors. The growing dependence that societies maintain of technology does not consist in the usage of opaque technologies. No one signs an important document without reading it; similarly, we should not base the performance of vital activities in the functioning of software we can neither “read” nor scan.

3) Actions on the international Scope

The actions coordinated on the UNASUR and Mercosur scope, although embrionary, are encouraging. The member states instructed two of UNASUR´s councils – the South-American Council of Defense (CDS) and the South-American Council of Defense and Planning (COSIPLAN) – to advance on their respective projects on cybernetic defense and interconnection between optic fiber networks, with the objective of making telecommunications safer and promoting the development of regional technology.

At the Mercosur scope, countries approved the “Decision of repulse of espionage by the United States on the region countries”, on which they affirm that surveillance consists in a violation of the human right to privacy and to information. This demonstrates that there is political space and will to articulate measures, which is fundamental. The espionage problem cannot be resolved by unilateral decisions, only by conjunct actions that hold greater political weight and can be more fruitful in the point of view of interoperability.

It is still early to know if some of these initiatives of the Brazilian government will take off. The present moment asks for urgent decisions that still have to be well planed otherwise being innocuous or, even worse, delaying national development. To take good decisions, perspectives of different sectors – technical, academic, business and civil society – should be taken into account. This key-moment should favor the fortification of Brazilian multisectoral discussion of subjects related to the internet, materialized at the Brazilian Internet Steering Committee (CGI.br).

* Marilia Maciel and Luiz Fernando Moncau are researchers and managers of the Center for Technology and Society (CTS) at FGV Direito-Rio.