By Francisco Brito Cruz and Dennys Antonialli

Brazil must pay attention to the consequences of relying on the discourse of national sovereignty in order to react to USA’s digital espionage

The Brazilian reaction to the American digital espionage scandal set off by Edward Snowden’s revelations presented various layers. On the diplomatic side, Rousseff’s government articulated a negative public response through the president’s speech in the UN opening ceremony. In terms of strategic planning, Brazilian state’s noticed the necessity of investments in infrastructure with the aim to decentralize the web (as well as the bet on cabling and on other equipment which can make data traffic cheaper inside national territory or the adoption of auditable software in the equipment [1]). From the legislative point of view, the federal government is currently pressing the House of Representatives to vote the bill known as “Marco Civil da Internet”, which now has an even more protective text concerning privacy.

In short, we can say that, during the debate that followed the Snowden scandal, Brazilian government has been defending its sovereignty, as well as assuming the role of privacy guardian to its citizens in order to justify its new political agenda. One must remember, however, that the same speech used to protect the sovereignty and the security of national interests legitimized the creation of loopholes in the U.S. legal system in order to relativize the right to privacy. The Foreign Intelligence Surveillance Act Courts (FISA Courts), created in 1978, were rediscovered and strengthened after the 9/11 terrorist attacks, with subsequent amendments. This institutional arrangement removes the common judicial control on possible monitoring mechanisms that violate the privacy of citizens and is a key system for the NSA spying activities inside and outside the USA.

This does not happen by chance. Sovereignty and security concepts are broad and versatile. It is the institutional practice that has succeeded in giving muscles and shape to the discourse that uses them both. At this point, it is crucial that the Brazilian government intends not only to think of ways to subvert USA’s power of surveillance, but also in establishing limits for the eventual assembly of this type of arrangement in the domestic sphere.

Recently, episodes that demonstrate the intrusive performance of the Brazilian government’s intelligence agencies have multiplied [2]. The protests that rocked the country in June this year were monitored by ABIN and various types of authorities on social networks – including personal communications via the Whatsapp application – which led to the capture of webpages’ administrators and a huge sum of situations that can possibly damage the right to freedom of expression [3]. In order to execute digital surveillance, General José Elito, from the Institutional Security Cabinet of the Presidency (GSI, in Portuguese), now has at his disposal the Mosaic program.

Amid the anticipation for the vote on the Marco Civil, the newspaper Folha de São Paulo reported that the Brazilian Intelligence Agency (ABIN, in Portuguese) diplomats spied at least three countries between 2003 and 2004 – Russia, Iran and Iraq. The information was included in one of the agency’s reports accessed by the journalists. In quick response, the GSI stated that the documents made reference to counterintelligence activities and the operations “obeyed the Brazilian legislation for the protection of national interests.” It also promised that those responsible for the leak of secret reports will be sued. The fact reverberated internationally.

The proposal to hold data in Brazilian territory offers a new field for “domestic espionage”. Much has been – mistakenly – advocated on how the measure itself would make Brazilians less exposed to the scrutiny of other governments. Meanwhile, little has been said about the (even) greater vulnerability that the situation can represent to Brazilians. As it was already indicated by research conducted by the Center of Law, Society and Internet of the University of São Paulo [4] (NDIS, in Portuguese), rarely does the Judiciary see anonymity as a tool worthy of protection. Often, there is an exaggerated leniency with requests that present questionable identification, determining the supply of early data connection and access. Vulnerability becomes clear as we face the high numbers of Brazilian requests on data identification released by the Google Transparency Report. With data based on national territory, this resistance to privacy protection and anonymous surfing by the Brazilian authorities may have undesirable effects on democratic life.

Despite the fact that intelligence activities may have plausible justifications, this does not relieve us of the need to promote a thorough discussion on how to protect Brazilian citizens (and foreigners) against the spying activities made by their own government. It is not enough to protect yourself from outside menaces; it is necessary to establish limits to what comes from within.

It represents the opening of a broader public debate concerning the limits of state surveillance activities. The juridical doctrine which prioritizes individual guarantees related to the criminal procedural law can be a starting point, but its dogmatic will only be able to discuss the new terms of the game if it embodies fresher ideas, allying itself with other concerns, such as those involving the right to privacy, freedom of expression and particularities related to the Internet’s architecture.

These issues are still very incipient in both the public debate and in academic production in Brazil. An example of this situation is the curriculum of law schools. Very few are the disciplines, the research or the entities specialized in the study of these rights. Here, the debate is just beginning. The approval of the Marco Civil and the discussion on personal data protection can serve as a boost, but universities need to reinvent their courses in order to cover the phenomenon in an interdisciplinary manner, and provide more qualified diagnoses to the civil society, promoting more elaborated interventions on the public policy scope.

Intelligence or counterintelligence activities may be necessary to maintain the democratic rule of law, but they cannot be free from public scrutiny. The purpose of the activities should be clear and well-marked and the legal limits must be respected. Hypertrophy of the sector in the U.S. should serve as a warning: the intelligence community should be at the service of democracy, and not “taking care” of it. The Internet does not need babysitters.

Francisco Brito Cruz and Dennys Antonialli are Coordinators of the Center of Law, Society and Internet of the University of São Paulo (NDIS, in Portuguese).

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[1] The act n. 8135/13 determines that “the communication of federal public administration’s data must be made by telecommunication networks and IT services provided by federal public entities”. This is a demand that benefits the Federal Service of Data Processing (SERPRO, in Portuguese), the largest public IT enterprise in Latin America, which “invests in the development of technological solutions in the Free Software area, as a strategic policy”. Source: https://www.serpro.gov.br/conteudo-oserpro/a-empresa-1.
[2] In the field of electronic communications. The extensive number of scandals concerning mainly the Brazilian intelligence sector, direct descendant of the National Intelligence Service, created during the military dictatorship, is significantly clear. With no clear purpose, the analogic wiretapping can migrate to new technologies. For more on the subject, it is worth reading SNI & ABIN: a reading of the role of the secret services (Rio de Janeiro: Ed FGV, 2002), by Priscila Brandão and Carlos Antunes, among other works on the Brazilian intelligence community.
[3] Such situations have already been summarized in a text by Eduardo Magrani and Mariana Valente, titled Internet and Democracy: June demonstrations in Brazil, Digital Rights No. 03/2013.
[4] ANTONIALLI, Dennys and BRITO CRUZ, Francisco. The right to know who it is: an empirical analysis of the actions of providing identification data of internet users in Brazil. Mimeo, 2012. Monograph Awarded with the Marco Civil Law and Development of Internet GV Prize.