The Internet in Mexico, two years after #ReformaTelecom

by Digital Rights LAC on July 14, 2015

Mainly by convergence effects, but above all, by its nature as enabler of rights, the destiny of the Internet is key in any analysis of telecommunications reform (#ReformaTelecom) in Mexico, which included constitutional changes, as well as a regulatory law that will outline the guidelines of the regulator. Although there were those who dismissed them as “minor issues,” when discussion was intended to bring issues related to this matter, international trends have been dragging their associated problems closer to Mexicans, to a point where it is impossible to escape them.

By Carlos Brito*

The first point to discuss is, of course, the access. While AMIPCI reports that 51% of the population is connected, there also is an uneven concentration across states and regions (from 2013-2014, the growth rate was 13%, while in 2014-2015 was 5%). These gaps, according to the reform, should be fought through elements linked to the generation of more competition, and through various policy instruments that would increase the basis of infrastructure, such as the shared network of 700 Mhz band and the extension of State backbone network for the exploitation of new and existing operators (which theoretically could increase the coverage).

Both projects are not only delayed by several months in compliance, the shared network has decreased in capacity adjustments and has made itself less attractive by other bids, while the backbone network project should have started in December 2014 and should be operating in 2018. In addition, there have also been indications that there are attempts to propose a counter-reform in order to finish them completely. Finally, concessions of social, community and indigenous type are not restricted for broadcasting, as, according to the constitutional reform, they can be extended to provide telecommunications services.

Successful civil society efforts such as Rhizomatica in Talea de Castro and other locations in Oaxaca, are an example that could be replicated in different parts of the country, where operators have refused to provide Internet access and where the regulator have failed to uphold these rights: the population installing and operating networks on their own and in their own terms.

Although constitutional reform contemplated that telecommunications are understood as a public service of general interest and that, among others, are be provided under competitive conditions, free access without arbitrary interference (Article 6); the Federal Government was openly opposed to the net neutrality, despite the narrative of the National Digital Strategy (which ambiguously is or not an Executive’s spokesperson in public policy on the matter). This institutional schizophrenia showed especially when the Federal Government was accused in early 2013 of having censored the site in collaboration with the US Embassy in Mexico to pressure the GoDaddy domain provider. The director of the EDN refused to comment, leaving that task to the Federal Police.

According to the former undersecretary of communications Ignacio Peralta, articles 145 and 146 of the law established a scenario in which ISPs could charge differently to application providers, content or services (APCS) on the Internet in order to make them “contributing” to investment of infrastructure. This is the central argument of telcos against the net neutrality worldwide. Furthermore, Article 146 permitted a number of interpretations, which could pass different types of tiering including prioritization (fast lanes/slowlanes). Article 145 included obligations on ISPs for blocking APCS by arbitrary request of unspecified authorities and liability of intermediaries for discretionary censoring by imposing the obligation to interpret possible violations of the law: private censorship.

As result of social pressure, articulated in demonstrations in the web but also in the streets, these provisions had to be discarded, resulting in two articles on net neutrality, which, in a comprehensive reading, provides an appropriate framework for an open and free Internet… matter, however, still needs to be handled by the Federal Communications Institute. And on this last point, things do not look good.

Mexico has gained a certain streak in creating autonomous constitutional bodies (outside the scope of the executive, legislative and judicial branches) for key policy issues. Two particularly important themes are the regulator, the Federal Communications Institute (IFT, in Spanish) and the National Institute for Transparency, Access to Information and Personal Data Protection (INAI, in Spanish).

The latter approved earlier this year a resolution that introduced in Mexico a version of the “right to be forgotten”, even more harmful to freedom of expression and access to information that the one in Europe with the Costeja case. The resolution provides a simple and without any rights weighting formula: the name of a person is a personal data, therefore, at the request of the owner, Internet search engines should de-index sites required.

This resolution began directly affecting media that in their notes denounced alleged acts of corruption by Mexican politicians linked to the family of former President Vicente Fox. For now, both Google (the first affected search engine) and Fortune Magazine (through R3D) are challenging this resolution in a litigious process, hoping to push back this form of censorship. In its argument, Google claims that Mexican laws are not applicable to the search engine service, because its operation is based in the United States, while in R3D we defend an optical where the company is itself bound to respect provision on data protection, while we fight back the implementation of this resolution by violating freedom of expression.

Eliminalia law office, headed by Dídac Sánchez (hopefully, he will not request to de-indexing this article from search engines) and the leading advocate of the so-called “right to be forgotten,” says that 80% of their clients are politicians and former officials in an country that is known for high levels of corruption and collusion with the organized crime and civil servants. Legal threats do not always take the form of a direct request to Google, as some media outlets yield to pressure by removing the contents of their servers. This is perhaps one of the best examples of a larger problem showing the shortcomings of the Mexican regulatory system just months after the reform, which claims to revolve around convergence.

While the IFT is prepared for the process of issuing rules on net neutrality, operators have rushed to normalize different practices contrary to this principle. One is the deliberate degradation of APCS, a practice that is tangible but invisible to end users (there is no way of knowing if an operator reduces the quality of service as a deliberate practice or if is an incidental event); in relation to Netflix, in its annual report on the quality of their service in different operators worldwide, the Mexican ISPs are ranked among the worst ones.

At the same time, all fixed and mobile operators have generated commercial package offers of free social networks, zero rating, in clear breaching the provisions on net neutrality of the Federal Telecommunications and Broadcasting Act, and taking advantage of the momentary vacuum of rules. However, it is so advanced and organized this violation to net neutrality, that the IFT itself, in its operation comparison chart (a chart done to help users choose better), shows offers of zero rating as an advantage to be considered by consumers, even before issuing rules on the matter.

In addition, since September 2014, Enrique Peña Nieto began talks with Mark Zuckerberg to introduce in Mexico, an even more aggressive form of zero rating. Although it has been delayed by disagreements to operate under the Telcel network (Facebook is making a bet for its proximity to Carlos Slim) or Telefónica Movistar; the IFT simply remains passive, quiet, despite being a regulator particularly equipped with tools.

Besides the argument that “the OTTs must also pay for the infrastructure,” ISPs have begun to handle a discourse that positions the net neutrality as a selective principle to access policies. That way, they make viable the business model of APCS discrimination, bypassing the innovation system on the Internet, freedom of expression and the users themselves. When Mexicans are struggling to break free from a pattern of TV and radio concentration, they could soon find a new, larger and more complex form on the Internet. If there were legislation with clear principles that prevented directly to the INAI imposing the “right to be forgotten,” would it abide it? The IFT experience leaves doubt.

Issues that seemed distant to Mexico a few years ago —liability of intermediaries, content blocking, legislation and regulation on net neutrality, “right to be forgotten”— are now part of the digital agenda in this country, added to the domestic discussion on Internet access policies. There is an agenda that has been aggravated in recent years for Internet reforms on the mass surveillance of communications, but this is a subject for another article.

The articulation of the civil society is essential to generate a counterbalance to the visions of government and industry that emphasizes human rights and democracy over the profit and political control. Many stories have been opened this year, demanding participation and involvement of all social sectors. Internet has meant a front of democratic opening when formal institutions of the Mexican State have gone back in their powers; more than ever, it is worth defending it, that is, we have to defend ourselves.

*Carlos Brito is Advocacy Director in R3D, Red en Defensa de los Derechos Digitales.

Image: (CC BY-ND-NC) Joris Lootens