Check how happened the forth week of the public consultations about the regulation of Marco Civil and the Data Protection draft bill.

Numbers and statistics

The public consultation of the Comitê Gestor da Internet no Brasil (Brazilian Internet Steering Comittee)

The public consultation opened on 19 December by the Brazilian Internet Steering Committee (CGI.br), also on concerning the regulation of the Marco Civil da Internet, ended last week (20 February). This Committee is a multisectoral body “with the purpose of coordinating and integrating all Internet service initiatives in Brazil, as well as promoting technical quality, innovation and the dissemination of the services available”.

Throughout the consultation, the CGI.br collected contributions in order to build a position document to be sent directly to Federal Government agencies responsible for elaborating Marco Civil’ regulation. The idea was to collect suggestions and build its own institutional position. Check the number of contributions sent to the CGI.br, organized from the discussion topics suggested by the Ministry of Justice:

The CGI consultation differs from the one opened by the Ministry of Justice in three aspects. Firstly, the CGI.br opted to request identification the contribution’s authorship. In the platform of the Ministry of Justice it is only necessary to use a “user name” and a valid email.

Furthermore, the layout adopted for the submission of contributions are different in the consultations . The CGI.br chose to use a layout in which participants could write out, which encouraged  longer arguments. The platform of the Ministry of Justice, in turn, works through topics and comments, favoring the dialogue between participants.

Finally, the call for consultation of the CGI.br predicted an open meeting at the end of the debate for the consolidation of the contributions, which took place today (27/02). At a later point, the CGI.br established a working group with a schedule, to prepare its final proposal.

What is expected is that the opinions and arguments not addressed by CGI.br position paper will be reinserted by their authors in the Ministry of Justice’ public consultation platform.

Regulation of Marco Civil: effectiveness of network neutrality and supervision

The user apba25, creator of the topic “Effectiveness of Neutrality“, raised the question: how will be the enforcement of the the network neutrality rule in Brazil?

Assuming that neutrality is a rule in force since the adoption of the Marco Civil da Internet, the regulation discussed in the public consultation has as an important point unveal who will be the authority responsible for monitoring and what are the means by which this authority shall ensure the functioning of neutrality.

On the one hand, the chosen regulatory body should have power, independence and enough structure to enforce what is in the law. In other words, it is necessary to find the best possible framework within the public administration to carry out inspections and punish any deviation in an efficient and quick way.

On the other hand, however, there is the concern about excessively discretionary actions by this authority. This latter concern would bring the need to create ways of monitoring and ascertainment of complaints related to the very authority chosen to control the network neutrality.

In response to the question raised by apba25, the participant Pedro Ramos (who is an InternetLab’ Fellow Researcher) aimed in on how should be the institutional arrangement for monitoring net neutrality:

“The specific rules on net neutrality in other countries assign to the national telecommunications authority the power to monitor compliance with the isonomic treatment provisions of the law, although there is a very incipient discussion in the US debate on the role that the Federal Trade Commission (agency responsible for consumer protection in the country) should have in the network neutrality issue.

I think this should also be the natural path for Brazil. It seems to me that the jurisdiction of the National Telecommunications Agency (Anatel) to adopt the necessary measures for the enforcement of the network neutrality in Brazil is well outlined in the Brazilian legal system, and that the agency already has established institutional mechanisms that can facilitate monitoring and enforcement (see LGT, regulations and procedures PAVD [Informative Process of Complaint] and PADO [Administrative Procedure of Non-Fulfillment of Obligations]).

An alternative to leaving net neutrality violations to the sole oversight of Anatel would be an obligation to consult the Brazilian Internet Steering Committee (CGI.br) regarding breaches of the provisions of art. 9 of the Civil Marco . This advisory role of CGI.br would be beneficial in two different ways: (i) bring institutional legitimacy , as the CGI.br is a multistakeholder body; and (ii) bring extra technical capacity and human resources for the investigation of difficult cases, since CGI.br currently operates several tools and technologies that can assist in identifying discriminatory practices that occur on the networks.“

This opinion is not unanimous,  especially considering some contributions sent to the Brazilian Internet Steering Committee (CGI.br), which still does not have a position about the subject. The expected positions of the both agencies (CGI.br and Anatel) are not disclosed yet.

Data protection: data transfer between public and private entities

The users JCK and Professor Marcos raised important questions about paragraph 3rd of Article 2nd of the Data Protection draft bill. This provision prohibits the transfer of databases managed by public agencies to private sector entities.

The concern seems to lie in the idea that private entities’ databases are not as safe as databases managed by public agencies. Participants interpreted that the provision aims to prevent data collected by the government being stored in unsafe conditions.

Although data security is a principle fairly addressed by the law, the prohibition of databases transfers managed by public bodies to private entities appears to be also linked to another recurring concept presente in the draft bill: the consent.

The problem would be in the difference between how the collection of personal data is held by the public sector and the private sector – in the first case being sometimes made without the citzen required consent (in a mandatory way). The commentary of Professor Danilo Doneda explains this tension:

Commentary: Danilo Doneda (PhD and Visiting Professor at the Rio de Janeiro State University – UERJ)

The government has certain prerogatives and facilities for collecting personal data, you note that the consent for the collection of data by the government is not necessary in many cases in the draft bill. And this is a rule in government, public bodies performing activities within their jurisdiction, in principle, do not need to ask for consent. This is balanced with transparency, you have to make it clear what they do, how they do. Transparency would be the compensation for the lack of requirement of consent.

The idea of ​​this prohibition seems to be blocking the transfer of data collected by the government without the need for consent to private entities.

The paragraph also provides an exception to the prohibition – the cases in which the public agency grants or allows its public activity to a third party (private entities). When such a transfer is required, it will be permitted, as long as exclusively for a specific purpose and determined in advance.