Privacy and the Internet in Brazil

-- By GuilhermePinheiro - 29 Apr 2010

Initial Considerations

In Brazil, the Internet has been suffering a consistent and fierce attack on its original hands-off layout. These attacks, made by the Brazilian government, are carried out as a two-fold strategy: (i) to curb illegal activities perpetrated through the Internet; and (ii) to favor Brazilian content over international competitors.

On the second issue, these attempts range from the establishment of a cap over international investments on Internet-related content, to the imposition of cable must-carry like provisions for sites distributing content. On the first issue, which we will analyze in this paper, the Brazilian government has tried to create, without any overstatement, an orwellian surveillance nightmare in the web. In the following pages we will show how.

Legal Considerations

Article 5, X, of the Brazilian Constitution states that intimacy, private life and honor are irrevocably protected and that any person is entitled to be compensated by any damages ensued by this violation. Moreover, article 5, XI, asserts the individual`s home is impenetrable and nobody may intrude without the owner`s previous consent. Finally, in article 5, XII, the Brazilian Magna Carta prescribes the irrevocable protection of privacy of mail and of any telegraphic communications. These rights are revoked only by a warrant.

Additionally, as opposed to the U.S, the Brazilian Constitution already prescribes a right to privacy concerning modern communications, such as the telephone or any telegraphic communications, which, according to the Brazilian jurisprudence, include all forms of electronic communications (see http://bdjur.stj.gov.br/dspace/handle/2011/18651 ).

In the United States, a strict constructionist interpretation might render there is no constitutional protection to privacy on new media. Conversely, in Griswold v. Connecticut (381 U.S. 479), the Supreme Court held that the Bill of Rights and the Fourteenth Amendment have never been held to protect only those rights that the Constitution specifically mentions by name. It seems, therefore, that both the US and Brazilian Constitution. provide sufficient degree of protection to privacy.

Status Questionis on the Issue

In this topic we will address one Brazilian Bill and one Law intended to turn the Internet into a space of constant surveillance. In both situations, the justification is always very similar: allowing the power of the state to exercise a tolerable degree of surveillance would make sure illegal activities would be hindered and the public interest best served.

Bill 76/2000 is a government sponsored proposal, which makes into crimes conducts like computer fraud, dishonest representation, cyber stalking, the use of confidential online information of private persons. All of them, undoubtedly, worth protecting. In order to accomplish this, however, the Bill compels Internet Services Providers – ISPs: (i) to maintain for at least three years the IP address, time and date of the subscriber`s connection and provide this information to authority whenever required; (ii) to deliver any other information required by the authorities in the course of an investigation; and (iii) to report on illegal activities to competent authorities. So far, the Bill has not recognized the need for a warrant in requesting these information. In failing to carry out these obligations, the ISPs are subjected to fines up to U$ 60.000, which in Brazil is a great deal of money.

These simple obligations make not only legal but ultimately compulsory to the ISPs (and to the government, whenever it requires) the maintenance of a file comprising all the online activity of individuals for a period not shorter than three years. Mutatis mutandi, it is as if in Kyllo v. United States, 533 U.S. 27 (2001), the police could hold constantly a thermal imaging device to scan all activity inside a household, which would obviously be absurd in the context of the American jurisprudence. In odds with the Brazilian Constitution, this Bill frustrates all expectation of privacy for anyone conducting online activities.

In 2009, the Brazilian Congress enacted Law 12.034/2009, which amended the previous Election Law and regulated political activities in the World Wide Web. Unlike the US (11 CFR Parts 100, 110 and 114), in which recent legislation attempted to the exclude the Internet from the stringent election rules applied to other media (such as broadcast and cable), the Brazilian legislation aspired to enforce election rules over the Internet environment.

In other words, while other countries moved away from applying traditional election rules to the Internet, the Brazilian government made an effort to extend the rules to the Internet. One vivid example is that Brazilian legislation forbids all electoral paid advertisement in the Internet except the ones on candidates` websites. Also the right to respond on personal attacks, imposed on broadcasting, will apply to the Internet (a type of Fairness Doctrine of the Internet). The stretching of this rule to the Internet is, to say the least, technically inaccurate, since broadcasters are entrusted with public spectrum and Internet sites are unlicensed and can face a theoretically-unlimited number of competitors.

And where is the privacy issue? In order to regulate the Law of elections over the Internet, Law 12.034/2009 requires all ISPs to maintain a record of all web pages and information therein which may concern the subject of the Law (personal blogs and web pages that may refer to the electoral process). This means that even if a person has already deleted his writings he can still be charged under this Law. This is not only an infringement upon the right to privacy but also upon free speech.

Conclusion

This paper aimed to show how the Brazilian government has been attempting, sometimes successfully, to establish a surveillance state over the Internet. As for the reasons it is doing so, they are not always clear and the paper length does allow us to dig deeper into this discussion.

By ordering ISPs to maintain for at least three years the IP address, time and date of their subscribers` connection and to provide this information to authorities without a warranty (the election rules are one example), the Brazilian government encroaches upon its citizens privacy and materializes an Orwellian surveillance nightmare.

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