On April 23, 2014, President Dilma Rousseff sanctioned the Law 12.965/2014, known as the Civil Rights Framework for the Internet, responsible for establishing “principles, guarantees, rights and duties for the use of the Internet in Brazil”.
Background history and context
On April 23, 2014, President Dilma Rousseff sanctioned Law 12.965/2014, known as the Marco Civil da Internet, responsible for establishing “principles, guarantees, rights and duties for the use of the Internet in Brazil”. The process of its construction relied on the innovation of citizen participation in the elaboration of the law through online consultations and refers to the year 2009.
Among the reasons listed to justify the construction of a specific law to regulate the use of the internet in the country, there is the contrary reaction of civil society to PL 84/1999, which dealt with cyber crimes and became known as AI-5 Digital.
This project, which received a replacement for deputy Eduardo Azeredo (PSDB/MG) at the Education Commission of the Federal Senate, expanding criminal provisions and requiring identification of any user before using the internet, was strongly rejected by activists for establishing what was meant by they called the “digital gag” or digital AI-5 (an allusion to the Institutional Act no. 5, established during the Brazilian military dictatorship of 64 and which suspended political rights and even constitutional guarantees).
The content of this PL highlighted the criminal aspects and typified online crimes. The mobilization against it was growing within sectors linked to the areas of culture, human rights and technologies, especially after its approval in the Senate and return to the Chamber for final processing.
At the time, the movement called “Mega Não” was very well known, which, through a blog, aroused intense online mobilization and a popular petition against what became known as PL Azeredo, in particular, on points about criminalization and mandatory identification. of internet users, with the storage of browsing records by the providers.
This mobilization against the AI-5 Digital is a preponderant factor to explain the Lula government's willingness to oppose PL Azeredo and position the political agenda in favor of civil regulation. However, such mobilization gains capillarity from the contacts of some militants with people inside the government and is strengthened from the use of interaction routines with the State that went beyond protests and direct actions, using, in this specific case, the proximity policy.
The fact, however, is that the PL Azeredo responded to a vacuum existing in Brazilian legislation regarding a rule that would guarantee clarity for users and providers about data privacy and the content made available on the Internet. However, users and civil organizations argued that, before establishing a criminal rule, it would be necessary to define a civil framework.
The Lula government bought this thesis. According to the Cultura Digital web platform, in which the online consultation was conducted,
the lack of predictability, on the one hand, discourages investments in the provision of services through electronic means, restricting innovation and entrepreneurship. On the other hand, it hampers the exercise of fundamental rights related to the use of the network, whose limits remain diffuse and whose protection seems to lack adequate instruments for its effectiveness.
The responsibility for the regulation of what would become the Marco Civil da Internet was transferred to the Ministry of Justice, commanded at the time by Tarso Genro. Genro is a politician with strong ties to participatory politics, who was a prominent figure during the establishment of the Participatory Budget in Porto Alegre and who produced analyzes on it, advocating participation as a more democratic form of government, the “PT way of governing”. This contributed to the configuration of the law based on a public consultation and an unprecedented collaborative experience for the construction of a law.
The Department of Legislative Affairs of the Ministry of Justice (SAL/MJ) was responsible for coordinating the process. The debate took place online in two phases and was hosted on the Cultura Digital platform, linked to the Ministry of Culture and the National Research Network (RNP), in addition to Twitter and RSS channels. An important partnership was established with the Center for Technology and Society of the Rio de Janeiro Law School of Fundação Getúlio Vargas (CTS), which participated in the development and
acted as process consultant.
Organizing, supporting and funding entities
Recruitment and selection of participants
Methods and tools used
What happened: process, interaction and participation
The project was launched in October 2009. The first phase, lasting from October 29 to December 17, 2009, consisted of an online public consultation on a set of normative principles considered relevant by the government to be publicly appreciated and debated.
The initial document was divided into three chapters: the firstaimed at identifying individual and collective rights related to the use of the internet that were not yet provided for in the national legal framework; the second highlighting the responsibilities of the actors that make content available on the web and the issue of net neutrality; and the third with an emphasis on government guidelines: references for the elaboration of public policies related to the internet, such as openness (interoperability, open standards and formats), infrastructure and training (guidelines related to public policies for culture, science and education) .
According to a study by Bragatto, Sampaio and Nicolás (2015a), 686 comments were made in a deliberative environment, with a lot of reciprocity, respect and arguments. On the other hand, it was noticed a concentration of a significant part of the contributions in a few users and the prevalence of a libertarian vision.
Comments made on the platform, as well as mentions on Twitter (via hashtags or direct mentions to @marcocivil), contributions received by email or trackbacks (published on other blogs establishing links to the consultation) and resolutions approved at the National Conference Communication (which took place concurrently with the first phase of the consultation) concerning the MCI were compiled and published by the government in a document with a total of 581 pages.
After this initial consultation, and as a result, a second document was prepared, divided into chapters and articles, in the form of a draft law. Thus, while in the first phase the themes were more general and based on principles, in the second phase there was already a draft project and the discussion took place in a more specific way, based on each of the articles and paragraphs that composed it.
The three original chapters were kept and two others were added: one for the preliminary provisions, in which the principles, foundations and objectives of the MCI were enunciated, as well as definitions of the terms used, and another for the final provisions, which established the defense of interests and users' rights.
The second phase of the online consultation was open between April 8 and May 30, 2010 and received 1141 contributions. In addition to the contributions received by the platform, institutional and personal contributions sent to the ministry were published on the website.
In general, with regard specifically to the online consultation, it can be said that it was a collaborative environment based on respect between the participants, without active moderation, in which there were numerous suggestions, propositions, arguments, illustrations and justifications for the different perspectives.
Participants sought to engage in discursive exchanges, justifying their positions using various sources of information. There were extensive and qualified discussions on the regulation of topics such as freedom of expression, net neutrality and privacy of users and their data, among others.
There are strong indications that only a specialized public was actually interested in participating in these two phases of the consultation. There was an open format based on self-selection of stakeholders, that is, the fact of relying on citizens' self-interest prior to the consultation can generate distortions to participation, since individuals with higher socioeconomic status tend to have more resources to participate (SMITH, 2009) and that those already involved tend to further reinforce their connection with the theme. However, this characteristic, which is routine in projects of online consultation or online deliberation, needs to be considered under the key of broadening debates, since this type of law formulation is a prerogative of the Executive and Legislative powers and that, otherwise, , would be restricted to much smaller circles.
As shown in Bragatto's thesis (2016), the interviews with the consultation managers demonstrate the care taken with the citizens' suggestions. The analysis shows that more than half of the contributions were effectively included in the document resulting from the first phase and that in the second phase there was also a reasonable level of contemplation of the suggestions in the final document, in which almost half of the evaluated proposals were considered in the bill sent by the Executive to the Chamber of Deputies.
In the case of the first phase, if we consider that most of the suggestions that were not considered because they are positions contrary to any legislation, the degree of consideration increases. That is, to a large extent, public consultation seems to tend to the main requirements to be considered democratically relevant.
The main difference found between the two phases is in the nature of the discussions. As mentioned, due to the fact that the first phase was based exclusively on principles, the discussions were more abstract and diffuse. The debates analyzed in the second phase took place froma bill and, therefore, the positions had greater concreteness and materiality. Although some users are against any type of regulation, it is noted that the differences in perspectives focus more on the different advantages and problems related to each possible decision. The second phase showed gains in terms of dialogue and arguments in relation to the first consultation.
Especially in a collaborative consultation and in which there are no direct votes, it is believed that the addition of new perspectives, ideas, positions and values on the part of society is welcome. Therefore, in addition to valuing popular sovereignty and the greater legitimacy of political decisions, the capacity of such instruments to generate more plural public policies is defended, as it is expected to obtain information on the needs and interests of the different actors interested in public policies. Although the number of participants in this case is low, the importance of the consultation itself, of opening up opportunities for participation, using well-designed channels, should not be ignored (GOMES, 2011).
Influence, results and effects
The change of government between 2010 and 2011 directly impacted the process. With the appointment of Paulo Bernardo to the Ministry of Communications and of Ana Buarque de Hollanda to the Ministry of Culture, the support that the project had within the Executive was substantially modified. Such ministerial changes strengthened the influence of corporate interests within the government. These interests had even more staunch defenders within the National Congress, in the case of the telecommunications and broadcasting sector. This scenario, which combines strong corporate influence and a lack of prioritization of Dilma's administration with initiatives of participatory democracy, resulted in the stagnation of the Civil Rights Framework for the Internet in Congress.
In this hostile environment, the militants made an effort to create a wide repertoire of mobilization, which combined direct actions, street protests, petitions, creation of online campaigns, faicebucaços and tweets to sensitize the public, keep those already involved active and pressure politicians to support the project.
During the three years of the Civil Rights Framework for the Internet in the Chamber of Deputies, pressure from the movements kept the project alive and was an important anchor for it to go to the vote. It was only at the end of August 2011 that President Dilma Rousseff signed Presidential Message no. 326/2011, forwarding the bill to the National Congress. The process then began to be conducted by the Legislative branch, and a special committee to assess the proposal was created. Deputy Alessandro Molon (at the time PT/RJ) was appointed as rapporteur and deputy João Arruda (PMDB/PR) as president.
Following the participatory logic established within the Executive, the Legislative branch repeated the opening to popular participation. Two public hearings and six regional face-to-face seminars were held in 2012. In addition, a virtual community was created on the E-democracy portal, a participation tool of the Chamber of Deputies. Molon presented his report in July 2012, although it was not voted on at the committee meeting that month.
It is interesting to observe how the logic of participatory democracy present in the creation of the MCI collides with the configuration of a formal representative democracy during its course in Congress. Although the consultation experience has ensured principles of openness to participation, responsiveness, empowerment, transparency, the process did not end there, as it depended on its referral, firstly, within the Executive and then in the Legislature, a space in which the logic of functioning differs profoundly, becoming dependent on the political will of the Executive and its negotiation capacity.
This aspect has an impact on the way the movements changed their interactive routines. Recognizing the consultation as a legitimate opportunity to raise demands, exchange arguments and support positions, the activists turned in the period to formulate their positions in order to focus on “institutionalized” participation (it is used here in quotation marks because the consultation, Unlike management councils or municipal plans, it is highly dependent on the political will of the government to take place, and there is no legal constraint that obliges representatives to adopt such an expedient for legislative production). There is a shudder in other interaction routines during this phase. Essentially, the possibility of participation reconfigured the demands that were being made on the state.
However, once the process had been concluded and it would depend on the disposition of the governing leadership and the approval of Congress, the interaction routines between social movements and the State change in a different way.to intensify the use of pressure tactics in order to get the attention of the rulers. The entry of other militant groups, with ties to the defense of the democratization of the media or with traditional movements such as the trade union, means that other actions were used to combat corporate movements and change the account in favor of social demands.
In September 2013, after Edward Snowden's revelation of the digital surveillance system promoted by the United States against governments around the world, including Brazil, the Executive branch intervened and requested that the project be considered on an urgent basis. Soon after, President Dilma stated in her speech during the UN Assembly in September 2013 the need to establish a "multilateral civil framework for the governance and use of the internet" and listed measures that would guarantee the protection of data traffic in Worldwide network.
Marco Civil ended up being approved in the Chamber of Deputies on March 25, 2014 and, later, in the Senate, on April 22, 2014, having been sanctioned by the president on the following day, April 23, during the event “NetMundial ”, an international meeting that brought together 85 countries in São Paulo and discussed alternatives and paths for global internet governance. The law was highlighted at the event as a cutting-edge law in terms of protecting users' privacy, freedom of expression and net neutrality.
Analysis and lessons learned
It can be said that the law represented a victory for the social movements that fight for democracy on the internet, not only for its result, but for the way in which it was built, having started from a social mobilization contrary to criminal regulation. of the network, going through the collaborative elaboration of its content, through online public consultation, and reaching the approval of a text that maintained the principles evaluated as fundamental to ensure network neutrality, the privacy of citizens' data and freedom of expression. .