Is Brazil a global leader in Internet governance?
May 15, 2014
On May 15, the U.S. Federal Communications Commission (FCC) will vote on a notice of proposed rulemaking for a new net neutrality regulation. The proposal is not yet available to the public, but the FCC announced that the new regulations would allow for "commercially reasonable" traffic management—a provision that has caused uproar in online communities. More than 100 technology companies—among them Twitter, Facebook, and Netflix—wrote a joint letter to the FCC in favor of full net neutrality, a concept gaining momentum all around the world.
And Brazil has set itself up as a leader in that movement. On April 23 and 24, São Paulo hosted the Net Mundial Conference on Global Internet Governance, an event that proposed a roadmap for the future of Internet governance. At the conference, Brazilian president Dilma Rousseff signed into law Brazil's new Marco Civil da Internet, or Internet Bill of Rights. By directly involving stakeholders from a diverse range of sectors, the Marco Civil showcased the country's participatory democratic institutions—and provided a potential model for other countries to follow.
So as we begin this debate on Internet governance here in the United States, what might we learn from Brazil's experience?
Q1: What is the Marco Civil da Internet?
A1: The Marco Civil da Internet established principles, rights, and obligations on the use of the Internet in Brazil, establishing guidelines for the role of the federal, state, and municipal governments on Internet governance.
At its most fundamental level, the law relies on recognizing that the Internet is central to fully exercising citizen rights. On those lines, the law guarantees the right to free expression, protects users' privacy, precludes liability for web content generated by third parties, and preserves Internet neutrality.
The process of developing the bill was messy. Initially introduced in 2011, the bill was unable to pass through the lower house until the president reclassified it as one of constitutional importance—halting all other congressional business until it was finalized.
And, to date, the bill is not without its critics. Much of the initial controversy around the bill centered on a provision (introduced in reaction to last summer's NSA leaks) that would have required local data storage. That provision, though, was ultimately cut, with President Rousseff using it as a bargaining chip to rally support and keep her restless base of legislative support united behind a single banner.
Q2: What is the status of net neutrality in the United States?
A2: Net neutrality became part of public conversations in the United States after the U.S. Court of Appeals for the District of Columbia Circuit struck down previous FCC regulations that prohibited Internet providers from selectively slowing Internet traffic. In an attempt to fill the gap left by the court's rejection of previous regulation, the FCC then proposed its new plan for regulation.
By allowing for "commercially reasonable" traffic management, the FCC sought to get around the court's issue with a blanket prohibition on management, allowing the FCC to determine on a case-by-case basis what is acceptable under the new regulations. The FCC sees this as comporting with the court's holding while maintaining the FCC's ability to preserve net neutrality, but critics are not as optimistic.
Many of those critics see the new proposal as an about-face on the part of the FCC. Rather than preserving net neutrality, these regulations, so say their critics, will divide the Internet into slow and fast lanes. And concerns abound over the ambiguous definition of "commercially reasonable" traffic management, with many questioning the discretionary nature of such language.
The rulemaking process will take place over the next year, and the debate promises to rage on for the foreseeable future. In reality, many critics will only be satisfied with the complete preservation of neutrality to ensure that Internet providers are powerless to influence where users get their news, entertainment, and social media.
Q3: To what extent could the Marco Civil da Internet serve as a model for U.S. Internet governance?
A3: In the United States, as in Brazil, there are a wide range of stakeholders whose interests must inevitably be taken into account in the regulatory process. So to what, then, might U.S. lawmakers glean from the Brazilian process?
Already, the conversation on Internet governance has taken root quite differently in the two countries. In Brazil, the Marco Civil was fought out in the legislature—therefore making the bill at least to some degree responsive to congressional constituencies. And, in many ways as a result, the result was a comprehensive treatment of Internet governance.
A similarly comprehensive approach cannot be expected in the United States. The U.S. regulatory structure takes up Internet governance one issue at a time by various enabled authorities—and keeps that regulation away from the legislative process, focusing instead on administrative rulemaking.
This process, known as "notice-and-comment rulemaking," allows the administrative agency (in this case, the FCC) to propose a rule that is then published and available to the public in the Federal Register. After a period of public commenting, the agency then published the new regulation.
In its very nature, this differs fundamentally from the legislative process. But at this point, the U.S. Congress is unlikely to take on comprehensive Internet governance reform, given its long list of priorities already stalled by partisan divisiveness. In reality, this difference in process makes it very difficult to transfer lessons from the Brazilian model to the U.S. context.
Conclusion: Whatever its (in)applicability to U.S. regulation, Brazil's Marco Civil da Internet is making waves worldwide. As Internet access continues to skyrocket all around the world, governments will face increasing pressures to provide the kinds of protections that the Marco Civil already intends to guarantee.
Over the coming months and years, as the successes and failures of the Marco Civil become apparent, other governments will likely turn to the Brazilian experience, looking to learn lessons from the pioneering Internet law as they develop their own parallel legislation, providing a reference point for a comprehensive and multi-stakeholder driven approach to Internet governance.
Carl Meacham is director of the Americas Program at the Center for Strategic and International Studies (CSIS) in Washington, D.C.
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