Brazilian reaction to Prism raises questions about regulation and governance of the network

by Digital Rights LAC on August 27, 2013


The Brazilian government’s response, before the espionage on the UN Security Council was revealed, offers interesting perspectives on the future of regulation and global governance of the Internet.

By Carlos Affonso Souza*

It is still too soon to tell what impacts the revelations made by the former intelligence analyst of the CIA, Edward Snowden, on the existence of programs implemented by the U.S. government to monitor communications on the Internet, will generate. Impressed by the extent of the spying program on the network, governments all around the world rushed to issue notes repudiating the conduct of the United States’ government. Moreover, they demand the end of such practices and request specific clarifications on the matter.

According to the information released, Brazil has represented a prominent role in the scenario of the countries monitored. Not only for being one of the countries that received most attention of American espionage, but also for the reactions initiated by the Brazilian government.

Regarding the monitoring of communications of Brazilian citizens and the large volumes of data which had been collected, the press had given great attention to the leaking of a U.S. top secret document that revealed the spying of Brazilian representatives’ electronic communications in the UN Security Council in 2010. The interest of the monitoring is to discover how Brazil, and other countries also spied such as France, Mexico and Japan, would vote on the proposal of a UNSC sanction against Iran because of the development of its nuclear program.

The document narrates the spying made by the U.S. government as a silent success that was possible thanks to the United States’ representation in the UN, since knowing about how different countries would vote in the Council’s meeting assured the United States access to information that allowed them to draw a more appropriate strategy, with wide lead over other representatives.

The Brazilian government’s response, before the espionage on the UN Security Council was revealed, offers interesting perspectives on the future of regulation and global governance of the Internet.

Besides repudiating the U.S. government’s conduct, among the first statements of the Brazilian government came the impulse to vote in Congress the bill named Marco Civil Internet. This project deals with the fundamental rights of the network user in Brazil, especially freedom of expression, privacy, net neutrality and government activity on the internet.

Born from the first initiative to discuss a project via network in the country, the Marco Civil came to Congress in 2011. For more than seven times some Brazilian representatives tried to vote up your text in the House of Representatives, but the existence of differences, especially on the article involving the principle of net neutrality, prevented so.

The association made by the government relating the scandals which involved the American program of monitoring communications and the Marco Civil was based on the Bill’s devices that focus on online privacy. Specifically, the Marco Civil brings some improvements on the treatment of the subject in Brazil, highlighting at least three points.

Initially, the Marco Civil represents a breakthrough regarding the treatment of privacy in Brazil since it is a law that, despite its principled nature, treats the subject with a focus on the relations maintained through the network. This is important because the protection of privacy and personal data in Brazil has constitutional roots, but the infra-constitutional laws deal with the issue in a very general manner (as does, for example, the Civil Code) or very sparsely (like the Consumer’s Protection Code, which focuses on creating databases of consumers). The peculiarities of the collection, storage, treatment and access by third parties of personal data in the network demand a specific protection.

The Marco Civil, in its seventh article, references the so called “principle of finality”, fundamental to the system of collecting and processing network data. According to this principle, the reason that justifies the collection of personal data shall always be informed, and the entity that collects and stores the data must be responsible for using them only according to the motivation informed. This principle aims to preserve a relationship of trust and transparency between the person who has their data collected and the entity responsible for the collection and storage of data, while restricting its treatment to the informed purposes.

Finally, the Marco Civil determines that personal data shall be inviolable, except for court order. This device is important to prevent personal data from being accessed without the proper judicial analysis of the request regarding its merits, specificity and the purpose of the information to be obtained.

More recently, and based on the successive revelations about the U.S. government’s espionage program, the Minister of Communications revealed that it would be suggested a change in the text of the Marco Civil in order to assure that Brazilians’ personal data shall be treated preferably inside Brazil’s borders. This measure, which aims to facilitate data access for the instruction of lawsuits, may generate complex effects for the operation of various network services. Experts have criticized the measure, but the government seems determined to carry on the proposal as a response to the revelations made by Edward Snowden.

Regarding the global governance of the internet, government representatives pointed out that the U.S. role would need to be revised, with particular emphasis on the role of the U.S. government in ICANN (Internet Corporation for Assigned Names and Numbers) and on the need to build a solution more diverse and international.

As it was said, it is still early to have a comprehensive view of the effects that the revelations about the U.S. spying program will have on internet regulation and global governance. However, it is important to keep up with the way that Latin American countries, and in the specific case of Brazil, will react, and to seize the moment to rethink their laws and actions on the global scene.

The former chairman of the Authority for the Protection of Personal Data from Italy, Stefano Rodotà, said the situation showed that Europe, because of the revelations about the U.S. espionage, had lost sovereignty over its citizens’ data.

The next chapters of this novel will show whether Brazil will be able to seize the moment in order to develop a proper defense of the fundamental rights on the network. Ultimately, what is at stake is an opportunity for countries worldwide to affirm its commitment to the defense of their citizens’ rights and, more specifically, of privacy. Complacency with espionage from side to side, facilitated by the internet, would be a blow to the protection of fundamental rights and to the future of the internet as a network that enhances freedoms.

*Carlos Affonso Souza
Professor da Escola de Direito da Fundação Getulio Vargas
Professor of the Getulio Vargas Foundation’s Law School