Two years ago, Brazil passed Marco Civil da Internet, a landmark piece of Internet civil rights legislation that made the country an international reference in digital rights. But its legacy is under threat from a cybercrime proposal that could radically change key aspects of the framework and threaten free speech online.
A report released last month by a parliamentary inquiry commission set up in July 2015 to investigate legal responses to cybercrime has proposed seven bills in its latest draft, including allowing police to access IP addresses without a judicial order and authorizing courts to block applications or websites that do not comply with Brazilian law.
The release of the cybercrime report coincides with a widespread corruption scandal and economic decline in Brazil. On Sunday, the Brazilian congress voted to impeach President Dilma Rousseff for allegedly using money from state banks to cover budget gaps. Opponents to the cybercrime report are concerned that amid this political uncertainty, legislation could be passed without public awareness of its potential impact.
Forty-nine Brazilian and international civil society groups signed a statement on April 1, cautioning congress that the proposals could undermine the rights guaranteed by the Marco Civil framework, which was signed into law on April 23, 2014. “This would be worse than before Marco Civil. It is of course a challenge to Marco Civil, but it is also a challenge to our constitution and democracy,” Carolina Rossini, vice-president of international policy at the think tank Public Knowledge, said during an emergency session on the proposals, held at the human rights and technology conference Rights Con on April 1.
For journalists who rely on platforms such as Facebook, Google, and WhatsApp to report, disseminate the news, and connect with sources, the proposed legislation could impact the free flow of information in the online environments that makes their work possible.
Although the Marco Civil framework continues to offer protection, recent incidents have dented Brazil’s status as a regional leader in Internet rights. Far from improving the issues that caused these incidents, civil society leaders and journalists with whom CPJ spoke said that the cybercrime proposals would make them worse.
Last month, a higher court granted a habeas corpus petition by Facebook after one of the social network’s executive was detained by police for nearly 24 hours on charges of obstructing justice. The arrest was made after WhatsApp, which is owned by Facebook, did not turn over messages subpoenaed in a criminal investigation. And in December a higher court overturned an order by a São Paulo judge for telecommunications companies to block WhatsApp after the messaging service failed to turn over data requested in a criminal investigation. In both cases, Facebook told news outlets it was unable to turn over the data because it uses encryption.
Although the blocking order was overturned on the grounds that it was disproportionate, Brazil’s 100 million WhatsApp users were left without the service for 12 hours. “It was terrible the day it went down. Luckily it was only one day so the damage was limited,” said Rodrigo Mattos, a sports reporter with UOL, one of Brazil’s biggest websites. “[Brazilian journalists] communicate with lots of sources via WhatsApp when they are not available on the phone.”
Fabro Steibel, the executive director of the Rio de Janeiro-based Institute of Technology and Society, said that if the cybercrime report is approved, incidents like WhatsApp being blocked would become more common. He told CPJ the original decision to block WhatsApp was a misinterpretation of the Marco Civil framework and, although a higher court later overturned the decision, “The report increases the possibilities of blocking apps.”
The same network of highly organized civil society activists that pushed for the Marco Civil framework has come out in full force to combat the cybercrime report, and they have already scored some successes.
On April 11, Esperidião Amin, the rapporteur of the commission, released a modified provision of the report that no longer included a requirement that Internet companies delete content considered “harmful to personal honor” within 48 hours without a court order. Defamation and desacato (disrespect) are criminal offenses under Brazilian law.
But the report keeps in place a proposal that would force Internet intermediaries such as website hosts and social media networks to remove copies of any content deemed illegal without a notification or court order. Mario Viola, a representative from the Institute of Technology and Society, warned at the Rights Con session that the definition of copies was overly vague.
Laura Tresca, a freedom of expression officer in Brazil for Article 19, told CPJ, “The new report is better, but it is still very bad.”
The provision to force intermediaries to remove copies of illegal content would also violate the Manila Principles, a set of best practices in Internet regulation, supported by CPJ and which argue that intermediaries should be shielded from liability for third-party content and that content should not be restricted without a judicial order.
As CPJ has previously documented, political figures and courts use content removal orders to take down news reports. Even without the new legislation, Brazil has one of the highest rates of content removal orders in the world, according to Google transparency reports. Between June 2014 and June 2015, it had 813 removal or delisting requests. According to the transparency reports, over the past year courts have issued removal orders for news reports about an allegedly illegal police search, blog posts criticizing media outlets, and a blog site that highlighted problems in the administration of a Brazilian city.
“The bills recommended by the Parliamentary Inquiry Commission pose some risks to the freedom required to perform our work as journalists in Brazil,” said Leonardo Sakamoto, president of Repórter Brasil, a nonprofit news and advocacy organization that reports on slavery in Brazil. “Let’s say a politician or an executive thinks a post damages his or her honor. A complaint of corruption for example. If a court agrees with him in order to delete the post, social networks will be required to remove the contents of a similar complaint without a court order or notice, automatically.”
Sakamoto, who is also a columnist for UOL, said, “Not only freedom of expression will be affected, but also privacy–which is fundamental to investigative journalism.” He added that the provision to allow police to access IP addresses would make it harder for people to denounce rights abuses.
“Most of these issues were ostensibly debated during the Marco Civil,” said Jamila Venturini, a researcher with the Getulio Vargas Foundation, one of Brazil’s most prominent research and higher education institutes, at Rights Con. “We had a really extensive public debate about them, and Brazilians and citizens in the debate rejected them.”
If the cybercrime commission approves the report in a vote on April 27, each proposal will enter congress as draft bills where they will be debated by the lower house. The commission will accept additional comments regarding the report until tomorrow, according to a notice published on the congressional website.
[CPJ Technology Program Coordinator Geoffrey King and CPJ Brazil Correspondent Andrew Downie contributed reporting.]