Until fairly recently, ‘Internet governance’ was a term that made people’s eyes glaze over. It has now become one of the most dynamic and challenging topics on the global political agenda. Digitization has escalated exponentially in the past several years, but social, legal and political institutions are struggling to keep pace with the implications. Internet governance will shape the future of global economics, security, communications, and human rights. The question arises: who will lead in the protection of Internet freedom in the digital age?

Introduction

It would be hard to overstate the extent to which Edward Snowden’s disclosures about US mass surveillance techniques in the post-9/11 period have shaken up geopolitical dynamics on Internet freedom, security and governance over the past year.

Even before Snowden, many governments had recognized the revolutionary, disintermediating and disruptive capacities of the Internet, and the corresponding empowerment of their citizens. Unfortunately, though, some chose to respond to the blossoming of free expression on the Internet by clamping down on social media, monitoring online activists, and imposing new restrictions on digital communications. Others chose to place themselves at the forefront of international reform, creating new momentum for a more informed global discussion on the right to privacy in the digital era.

This article will examine Brazil’s role in the increasingly complex realm of Internet governance. During the past year, Brazil has taken several significant leadership steps toward ensuring protection for human rights in the digital age. These moves have shaken up previous geopolitical alignments and challenged governments around the world to take a stand to ensure protection of human rights in the digital realm. The question remains whether Brazil can be counted on as a champion for digital freedom, security and privacy in the 21st century.

The geopolitics of Internet governance post-Snowden

Post-Snowden, numerous governments, democratic or not, became more assertive in international Internet governance matters, whether in the name of fighting terrorism, protecting their citizens’ privacy or enhancing cyber security. For example, the Chinese government has pushed for ‘cyber sovereignty’, by which it means that each sovereign state should be able to establish its own Internet, governed by its own rules, according to its own definition of freedom online. Obviously, this proposal would destroy the open interoperable Internet as a global platform for communication and innovation, and would undercut the prospects for freedom, both inside China and globally.

Just as troubling, the US has set a dismal benchmark for the right to privacy online. Once viewed as a champion for Internet freedom, the US has now provided a roadmap for mass surveillance, including with the knowing and unwitting assistance of global Internet companies. Besides the widely reported impact on the privacy of heads of states and citizens around the world, government surveillance and secrecy are also undermining press freedom and the right to counsel within the United States, all human rights essential to a healthy democracy. Ultimately government surveillance is also obstructing the American people’s ability to hold their government to account. If many others follow the United States’ lead, privacy may quickly disappear in the digital age.

Furthermore, the Snowden documents report that the United Kingdom’s Government Communications Headquarters (GCHQ) is engaged in mass surveillance of people in the UK and overseas, and the government has been criticized for these reported surveillance excesses. In contrast to the US government, which has publicly engaged with a range of stakeholders about current practices, the UK government has been largely silent on the issue. The government has refused to answer the most basic questions about its intelligence gathering practices, simply asserting that UK intelligence agencies complied with the law and acted to protect public safety. Disregarding public questions and concern, the government rushed through a law in July 2014 that extends the government’s surveillance powers with no time for public debate.

At the same time, the Russian government has put in place increasingly restrictive censorship and surveillance regimes, favouring the use of the Internet as a tool to control its citizens. President Putin has called the Internet a ‘CIA project’, and the Russian parliament adopted a package of legislation that severely restricts Internet freedom: authorizing prosecutors to block certain websites without a court order; requiring bloggers with more than three thousand hits per day to register with the state and follow a set of regulations identical to those for mass media, with none of the rights that media outlets have; and requiring website owners to store user data only in Russia which could lead to further fragmentation of the open, interoperable Internet.

Where does Brazil fit?

One bright spot, though, in the geopolitical Internet governance sphere, has been Brazil. In September 2013, President Dilma Rousseff spoke to the United Nations General Assembly, where she laid down two very important principles of Internet freedom, security and governance:

  • In the absence of the right to privacy, there can be no true freedom of expression and opinion, and therefore no effective democracy;
  • The right to safety and security of citizens in one country can never be guaranteed by violating the fundamental human rights of citizens of another country.

These two principles go a long way in articulating essential human rights parameters that should guide national security calculations about surveillance going forward.

Brazil then placed itself at the forefront of international reform. Together with Germany, Brazil sponsored a United Nations resolution that was the first major United Nations statement on the right to privacy in 25 years. It is obviously noteworthy that both Dilma Rousseff and Angela Merkel were reported to have been victims of US espionage activities a short time before this effort. Yet, motivated by public outrage following Snowden’s revelations that their leaders had been spied upon by the United States, Brazil and Germany helped create new momentum for the global discussion on digital privacy and led with strong democratic and human rights principles.

Taking off from the foundational consensus resolution at the UN Human Rights Council in 2012 that “[a]ffirms that the same rights that people have offline must also be protected online”, Brazil and Germany extended the global consensus explicitly to “The Right to Privacy in the Digital Age” at the United Nations General Assembly: “Through this resolution, the General Assembly establishes, for the first time, that human rights should prevail irrespective of the medium and therefore need to be protected both offline and online,” Brazil’s representative said, echoing the statement delivered by President Dilma Rousseff on the centrality of privacy to the exercise of other human rights, during the opening of the 68th session. Following the passage of the resolution, some stressed the need to create an international human rights mechanism dedicated to the right to privacy. Others were disappointed with the outcome for its lack of a specific reference to any such mechanisms in the text, while others recognized the consensus as a decisive international response to the overreach of national and extraterritorial electronic surveillance activities conducted by the United States and the United Kingdom.

Despite the differing assessments, the General Assembly’s approval of the resolution on privacy in the digital age was a vital first step toward stigmatizing indiscriminate global surveillance as a wide-scale violation of human rights. The resolution called for a report by the UN High Commissioner for Human Rights on the protection and promotion of the right to privacy in the context of domestic and extraterritorial surveillance, the interception of digital communications, and the collection of personal data, including on a mass scale. In addition, the resolution propelled forward a more profound debate about the need to recognize the obligation of all states to respect a global right to privacy.

Domestically, as a well-recognized regional leader in its relative support of and freedom for civil society groups, Brazil also has become a favorite refuge for digital activists and journalists who expose human rights abuses in the digital realm. Brazil also took an extremely important leadership step by enacting what is known as the Brazilian Digital Bill of Rights or ‘Marco Civil da Internet’.

Marco Civil is an historic law that can potentially serve as a model for other nations seeking to enact legislative measures that enshrine protection of human rights online. Importantly, Marco Civil includes protection for the right to privacy and free expression online, and serves to reinforce application of the rule of law in the digital sphere. In this regard, Marco Civil counters the negative global trend of governments restricting Internet user’s digital activity within national borders. Furthermore, the law was drafted with democratic participation and serves as a significant counter-model to secret drafting processes that contradict promises of transparency.

Marco Civil establishes Brazilian support for net neutrality as a guiding principle for future Internet developments. But the legislation, while an important precedent, is not perfect, and several significant questions remain about whether implementation of certain aspects of the legislation will in fact protect users’ digital rights. For example, the legislation requires Internet service providers to keep access logs of their services for six months. This leaves open the risk that the data might be misused, and imposes higher burdens on companies, especially new innovative start-ups, to keep all of these sensitive data properly and securely stored. Strong privacy protections and separate data protection legislation will need to be established to make sure these provisions are carried out in a way that is consistent with human rights.

Brazil’s efforts for a multi-stakeholder approach

In April 2014, Brazil also organized and led NETmundial, a global gathering of governments, non-governmental groups, technologists, private sector actors, and academics on the future of Internet governance, and successfully demonstrated how a global multi-stakeholder approach to Internet governance policy making could work. The ‘multi-stakeholder’ approach is being developed as an alternative to most other UN processes that are ‘multilateral’ in nature, and as such, include only governments as stakeholders. Through relatively inclusive and transparent drafting and negotiating processes, NETmundial participants produced an outcome statement that prioritized human rights principles and provided a roadmap for future multi-stakeholder Internet governance conversations.

Brazil has not only hosted NETmundial, but has now been appointed for the second time to host the Internet Governance Forum (IGF), which will take place next year in João Pessoa, state of Paraíba. The IGF is meant to support the United Nations Secretary-General in carrying out the mandate from the World Summit on the Information Society (WSIS) to convene an annual forum for multi-stakeholder policy dialogue.

Brazil’s embrace of the multi-stakeholder approach to Internet governance has very significant impact on the geopolitical dynamics within the UN. Last year, Pakistan, speaking on behalf of Ecuador, Venezuela, Cuba, Zimbabwe, Uganda, Russia, Indonesia, Bolivia, Iran and China at the 24th Session of the UN Human Rights Council, questioned the efficacy of existing UN mechanisms like the Internet Governance Forum, and instead proposed the creation of an intergovernmental or ‘multilateral’ mechanism for Internet governance.

Along with Russia and China, Brazil’s other BRICS partner, the Indian government, also has pushed for ‘multilateral’ Internet governance in a variety of settings, including at NETmudial. Far from internationalizing and democratizing governance, the ‘multilateral’ approach could enhance the power of undemocratic governments to control the Internet, excluding non-governmental groups, technologists, academics and the private sector from the process.

Notwithstanding its alignment with the BRICS on other matters, the Brazilian government seems to have embraced the inclusive multi-stakeholder approach as an alternative to exclusively multilateral governance. Yet, even for Brazil, questions remain about when and where the multi-stakeholder approach will be favoured and incorporated. Representing Brazil at the opening ceremony of the 9th annual meeting of the Internet Governance Forum (IGF) in Istanbul, Virgilio Almeida, the Secretary for Information Technology Policy of the Ministry of Science, Technology and Innovation (MCTI) said: “I’ll present the Brazilian position: support for multi-stakeholder approaches in matters of Internet governance and also the multilateral relations between states in this process, especially in subjects like cybercrime, cyber-attacks and transnational economic issues over the network.” The turn to a multi-stakeholder approach with respect to cyber security policy making will undoubtedly be one of the most highly contested.

Why does this multi-stakeholder approach matter to human rights? The Internet platform has become the essential tool for the exercise of virtually all human rights, whether exposing abuses, preserving privacy, making a living, organizing a protest, or choosing one’s associates. It has also become the medium for organization of human rights work and advocacy. The open interoperable Internet platform has provided a means for fast, inexpensive global communication and connection, and for many new outlets for free expression, free association and assembly. Human rights protection now rests squarely on whether the Internet functions, and how it functions. Accordingly, human rights defenders care about the maintenance of the Internet as an open, global and interoperable platform, as well as about the full protection of human rights. Yet, the characteristics that make the Internet so valuable for human rights as well as commerce and many other social functions, will be degraded and unsustainable if only governments have a seat at the governance table while technologists, academics, the business community and civil society are excluded, as would happen in a multilateral system. Similarly, if civil society is excluded from governance debates and governments alone determine the parameters of human rights protection online, protection of digital rights around the globe will suffer. Governments are not able to preserve the best that the Internet can offer, including in terms of digital security and protection, if they act by themselves in regulation and governance.

Conclusion

We are at a decisive moment with respect to protecting both the open interoperable global platform, and human rights online. The leadership demonstrated by Brazil during this period of disruption has provided a significant challenge to other governments seeking to protect freedom, security and privacy in the online space.

Brazil’s civil society, as well as the multi-stakeholder entity CGI.br, deserve a great deal of credit for skillfully guiding the Brazilian government toward such positive outcomes on Marco Civil and NETmundial. But the years ahead will require even greater commitment and leadership, to ensure that Internet governance and regulation protect and strengthen rights, rather than undermine them.

Domestically, the Brazilian government will be urged to move forward on its own ground by implementing Marco Civil in a transparent and participatory way. Simultaneously, in the international arena, now that it has embraced the more inclusive, transparent ‘multi-stakeholder’ approach, Brazil will be expected to continue influencing the global debate on Internet rights and governance in a way that reinforces strong human rights and democratic principles. An immediate challenge in this process will be to build from the 2013 Right to Privacy in the Digital Age resolution at the United Nations, and support an initiative within the international community to establish a UN Special Rapporteur on privacy in the digital age, with regular reporting on government surveillance policies and practices. This will entail willingness to review its own surveillance and intelligence services. In exercising this leadership, Brazil will be required to challenge its BRICS partners on their performance on digital rights and security as well.

Furthermore, Brazil could use its leverage to move the international community toward recognition that indiscriminate surveillance is in fact an invasion of the right to privacy. Just as the powers of digital surveillance now reach to every corner of the world, so do the obligations to respect the global right to privacy. In an age of borderless communication, no country can limit its human rights obligations to the rights of its own citizens while trampling on the rights of all others.

Brazil is in a privileged position to expand the coalition of governments and global citizens taking action to support and protect a free, open and secure Internet. The coherence of Brazil’s domestic processes and its international behaviour on digital rights will reinforce and justify support for its global leadership in this realm. This is a crucial period for the protection of human rights in the digital age. Brazil’s continued demonstration of leadership – to its own domestic constituencies on national policy and practices, as well as to the world on articulation and setting of international norms – is essential to global human rights protection in the digital age.

 

A version of this article was published in Amnesty International Netherlands: Shifting Power and Human Rights Diplomacy