Internet regulation and the Brazilian EroTICs context

Since 2009, debates concerning internet national regulation initiatives have drawn considerable public attention in Brazil. A House Bill on cybercrime, being processed in Congress since 2003, has been widely contested. As a response, the Federal Government opened a public consultation on a Bill to regulate the internet.1 In examining that trajectory, we review the background to the debate on internet regulation, identify relevant actors and forces at play and analyze the initial discussions on the new proposal of civil regulation in this article.2 As a first outcome of the Brazilian case study in the EroTICs research project, we also explore the connections and disjunctions between these debates and the issues of gender and sexuality.3


Internet use, gender and sexuality in Brazil


In March 2009, 62.3 million people in Brazil had internet access. In recent years usage has increased, mainly among women, teenagers and children.4 Among Brazilians, participation in social networking platforms such as Orkut is particularly significant.5 As in other countries, the internet has achieved structural significance for finance, commerce and trade; science and technology; and governance and politics. In the realm of sexual politics, since the 1990s, the internet has become a crucial tool for activism and advocacy. Women’s and Lesbian Gay Bisexual Transvestite and Transexual (LGBT) rights claims became visible in the 1970s and 1980s, and have come to constitute a main feature of the democratization process after the military dictatorship (1964-1985). These agendas are now well developed and rest on solid legal and institutional grounds.6


However, feminist and LGBT demands have not been fully addressed. Abortion is still criminalized (except in the case of rape and when pregnancy presents a risk to the woman’s life), and a Bill on same sex unions has been blocked since 1995, as was a 2006 House Bill that would criminalize homophobia. In both these cases, the Bills failed due to a strong reaction among religious conservatives, both Catholic and Evangelical. Additionally, rights guaranteed by law or jurisprudence do not always translate into daily realities. In this context, the internet is a crucial tool for communication, campaigns, protests, and debate. Likewise, the web is a space where intense exchanges take place among persons and groups. It is a channel where ideas, images, practices and convictions circulate, and a place where identities are constantly re-created. Online spaces create comparatively safe spaces for sexual and amorous exchanges (casual sex, dating, marriage), but also provide access to sex trade (commercial and non-commercial) and pornography. The web is, therefore, a privileged locus for non-hegemonic discourses and practices to be deployed and negotiated.7 Those features constantly feed the social imaginary portraying the internet as a dangerous place where women and children, in particular, are potential and presumed victims of violence and abuse. This imagination politicizes the internet in a way that leads to proposals of draconian regulation and criminal measures. The everyday sexual uses of the internet trigger moral panics that can be manipulated to serve interests and ends other than the protection of persons and groups that are particularly vulnerable to abuse. As we will show, this type of injunction has been at play in the recent debates and controversies about internet regulation in Brazil.

The regulation debate: Background and forces at play


The debate about internet regulation started in Brazil in the 1990s, with the need to administer the use of “.br” and other domains and, later on, when concerns were raised about web vulnerability to bank fraud, music file-sharing, racial hate speech and pedophilia. In 1995, the Brazilian Internet Steering Committee (CGI.br) was created. CGI.br as the main national internet governance body achieved full institutional autonomy in 2003.. It is a multi-stakeholder organization, composed of representatives from government, the enterprise sector, civil society organizations and the academic community. Although the core mandate of CGI.br is the administration of .br domains, its mission potentially encompasses a regulatory function concerning content. From 1999, a series of Bills on cybercrime were submitted to the Congress. Among them, was a Bill that became widely known as the “Azeredo Bill”, after Senator Eduardo Azeredo (PSDB State of Minas Gerais). The aim of this Bill, still before Parliament, is to deepen and expand vigilance and criminal content of the original texts on which it is based, particularly with regard to compulsory registering of internet users and five-year retention of user logs by internet service providers to assist potential criminal investigations. Unauthorized downloading and copyright infringements were issues at play when the Bill was debated. However, what really explains its approval was the pressure exerted by the banking system for tough measures to penalize digital financial fraud. In 2001, a state-of-the-art secure system of digital certification was adopted for financial transactions. This, however, did not totally eradicate issues of bank fraud, identity theft and credit card cloning. Since, under Brazilian law, financial institutions are liable for losses experienced by clients who fall victim to bank fraud, the population at large does not see digital fraud as a major problem, even when banks warn that those losses are transferred to customers via bank fees. Therefore, the proposal to severely punish financial cybercrimes did not mobilize enough political support in Congress or in society. But there were more fertile grounds to plant the seed of internet vigilance: the fight against online pedophilia would have turn out to have greater popular appeal.

Child pornography and its multiple effects


Child pornography was defined as a crime in Brazil by the Statute on Children's and Adolescent's Rights (ECA), adopted in 1990. Since 2004, Brazil is signatory of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography8.


In 1999, the National Secretary on Human Rights and the Federal Police established a partnership to combat online child pornography. Thereafter, CGI.br also discussed the subject in one of its ordinary meetings9.


In 2000, a group of lawyers and internet experts, in partnership with a children’s rights organization in Bahia (CEDECA), established an internet hotline to gather reports of online pedophilia. Child pornography networks seem to have acquired new proportions with the expansion of internet access in the 2000s and, in particular, after the creation of Orkut. At the same time it gained increasingly visibility as human rights abuse among NGOs, internet activists and society at large. In 2005, the CEDECA hotline project was institutionalized under SaferNet, which started systematic research on pedophilia, racial crimes, drug trade and Nazi propaganda in Orkut. According to their records, 90 percent of all hotline reports referred to child pornography. Grounding their arguments on this data, in early 2006, SaferNet filed an injunction against Google before the Federal Public Attorney’s Desk in São Paulo (MPF-SP)10.










The Google episode


Google Brazil was called in to provide the internet traffic data and the identities of users suspected of handling child pornography. The company rebutted, alleging that the Orkut server is based in US and, therefore, access to the users’ log files would be beyond the jurisdiction of Brazilian law. Between 2006 and 2007, the Brazilian president of Google failed to respond to several citations received from national authorities. SaferNet then started an information campaign around the fact that advertisements were being automatically attached to child pornography by the search engine, in order to mobilize advertisers to question Google's content policy. The case gained media visibility both national and internationally. Finally, in July 2008, Google complied to by signing a Conduct Adjustment Agreement (Termo the Ajustamento de Conduta –TAC11) with the MPF – SP and SaferNet.12 In signing the TAC, Google committed itself to accept civil and criminal notifications concerning Orkut in relation to child pornography and hate speech, as well as to respond promptly to all judicial indictments received. The text of the agreement determines that: all users’ log files must be kept during for 180 days and made available whenever requested by the judiciary; the São Paulo MPF must be informed of all episodes of pedophilia occurred in Brazil that are reported to the National Center for Missing and Exploited Children, as well as other violations of the ECA; when applicable in light of these rules content must be immediately removed; Internet Safety Center for Orkut users must be created; and finally, Google is complied to provide bi-monthly reports to the MPF , informing about the profile of users’ and communities’ that had been removed because they were involved with child pornography, as defined by the ECA, or else with the crime of racism as defined by specific legislation (Law 7716/1989).



The Google episode and other child pornography cases have also mobilized the creation, in March 2008, of a Parliamentary Inquiry Commission (CPI) on Child Pedophilia, requested by Senator Magno Malta (PR-Espírito Santo State). The CPI on Pedophilia is assisted by a technical advisory group, which included the participation of the director of SaferNet and members of the MPF. It elaborated various Bills to reform legislation defining internet child pornography and raising the level of criminal charges it would incur. Among others, it drafted PL 3.773/08 to alter the ECA article that addresses child pornography, expanding it to web-based crimes and increasing the penalties. One of the Bills (N. 11829/2008) was approved in record time, and was signed by the President in November 2008 to coincide with the World Congress against Sexual Exploitation of Children and Adolescents, organized by the End Child Prostitution, Pornography and Trafficking Campaign (ECPAT) in Rio de Janeiro. The CPI on Pedophilia also investigates reports to the site denunciar.org.br, kept by SaferNet, and can request the judicial suspension of telephone and internet privacy rights. It established agreements with the MPF, state attorney offices, credit card companies and telecom providers for the identification of clients and users that may be involved in child pornography, that is those who are involved in the production, dissemination, consumption or possession of materials classified as child pornography.13 In May 2009, the Brazilian Federal Police coordinated the "Turko Operation" to investigate and eliminate those pedophilia networks in Orkut that had been identified through denunciar.org.br. The operation involved issuing 92 criminal warrants in 20 states, with 10 individuals charged. In the course of the operation, Senator Malta, the director of SaferNet, and members of the MPF gained high media visibility (see footnote 13). Most key stakeholders interviewed for this research project considered that the sequence of events narrated above has favored the creation of social and parliamentary consensus around an urgent need to approve cybercrime laws, a consensus which had not been achieved when the stakes were merely the financial losses of banks or unauthorized music downloads. This shift is reflected in the various versions of the “Azeredo Bill". While child pornography was dealt with through the reform of the ECA and the penal code, more recently an article was included in the “Azeredo Bill" to address this crime14. However, the dynamics of this political bargain were quite complicated and contradictory. Most importantly, not all actors involved in the struggle against child pornography favour the Bill that has been approved.

Consensus… ma non-troppo


In the beginning of 2009, political mobilisation against the "Azeredo Bill" gained visibility and consistency as a wide range of groups and networks (free software and digital culture movements, organizations engaged in struggles for communication rights, and human rights organizations, including SaferNet) launched the campaign "Against the Digital AI-5", whose name evoked the somber memory of Decree AI-5 (1968), which had imposed draconian media censorship during the military dictatorship. Mobilization started as cyberactivism, with an online petition against the law signed by around 150,000 people. That was followed by a series of public events, named “Mega NO”, in various cities across the country. The core message of the events was the repudiation of censorship and a call for freedom of expression. The "Azeredo Bill" was sent back to the House, where it was easier for voices against it to be heard, and new political actors entered the scene. This mobilization "Against the Digital AI-5" enhanced connections between civil society and institutional machineries in ways that favored a radical shift in the terms of the debate. Three moments were particularly relevant to this recent trajectory:


  1. In June 2009, CGI.br made public a "Decalogue of Principles" to guide the operation and functioning of the internet in Brazil.15 The relevance of this document derives from the policy weight of CGI.br, but also because the Principles dislocate the terms of the debate from a criminal law approach towards a human rights framework. This shift echoed one main argument raised by the "Against the Digital AI-5" movement: the one which questioned the need to address internet regulation from a criminal justice perspective, instead of framing in human rights terms.



  1. A second key moment was during the International Free Software Forum in June 2009 in Porto Alegre, when President Lula reacted to critiques against the “Azeredo Bill”, saying that he was against censorship and that he was committed to containing the powers given to the state under the Bill.16 Afterwards, the Presidency of the Republic defined the Department of Legislative Affairs of the Ministry of Justice as the body responsible for finding a juridical alternative to the “Azeredo Bill”.



  1. To fulfill the task, a Ministry of Justice team established a partnership with the Law School at Getulio Vargas Foundation in Rio, a prestigious academic institution with long research experience on internet regulation and copyright. This led to the third relevant moment: the launching of a public consultation to build the foundations of a Civil Framework for Internet Regulation (Marco Civil da Internet) in October 2009.


However, the elaboration of the Civil Framework does not mean that the “Azeredo Bill” will be filed away, but that its processing in the House will be suspended until the Civil Framework is submitted to Congress.

The Civil Framework Consultation: first debates


The consultation is being conducted through a blog in the “Cultura Digital” website and has been designed to be held over two rounds. The first took place between October and December 2009, coinciding with the final preparations for the first National Conference on Communications (CONFECOM), and was aimed at debating the foundational premises of the Civil Framework. In the second stage, planned for early 2010, a Bill will be drafted based on the contributions collected through the first consultation and similar legislation adopted in other countries. The text will be available online for comments, and is subject to revision. The text that prompted the first round of the consultation was inspired by various sources: the fundamental principles of the Brazilian Constitution, the CGI.br Decalogue, and specific contents of the “Against Digital AI-5” petition. It was structured in

three thematic tracks


:


  1. Individual and collective rights;

  2. The responsibility of actors;

  3. Governmental guidelines.


Our case study observation analyzes the general dynamic of the consultation and, more specifically, comments made in relation to tracks 1 and 2. Hundreds of comments were posted, both by individuals and organizations, in the 45 days that the consultation was open, but most participants belonged to the Free Software and Digital Culture movements. One reason for the absence of other voices could be the platform’s lack of user-friendliness, and technical difficulties, as reported by participants and confirmed by our own observation. Another probable factor could have been the technical complexities of the debate. Comments in

Track 1,


regarding

Individual and collective rights


, included both critiques about the absence of internet regulation, as well as a majority who completely opposed any form of regulation, calling for total freedom and anonymity on the internet. Many comments simply supported the proposal of a Civil Framework and others proposed that in addition, public policies should be adopted to raise awareness about the right to privacy and the need to respect it. The most controversial issue discussed in Track 1 (as recorded online, but also in off-line debates) was the retention of log records by internet providers. As introduced in the consultation, the Civil Framework should determine precisely:


  1. in which cases the retention of log records should be allowed;

  2. what the adequate conditions for user data retention are;

  3. under which circumstances the law can authorize the handing over of users’ log files to authorities, lifting users’ privacy protection.


Many commentators criticized the lack of clarity in the text regarding the types of log files that can or cannot be retained. Various voices were against user data retention altogether, echoing activists that adamantly oppose the Civil Framework. They stand for the total independence of cyberspace, and consider that any form of regulation may compromise further technological developments. For instance, Sérgio Amadeu’s17 in an intervention during a debate about the Civil Framework - that took place in the Brazilian Digital Culture International Forum (São Paulo, November 2009) – declared that instead of investing in the Civil Framework, energy should be devoted to create laws to guarantee internet surfing without any type of vigilantism. In his view, the Civil Framework may represent a risk as its inherent logic of state permission and control tend to curtail freedom in the web and may eventually stall IT development. He would prefer a law aimed at ensuring the rights of Brazilian citizen in the Internet. Other voices, particularly from internet service providers (ISP), support the idea of a Civil Framework and advocate user-data retention, arguing that they cannot be made responsible for criminal acts performed by users that contract their services. Other experts and activists say that the discussion about log files cannot be framed in binary terms: either in favor or against data retention, because, in practice, log files are already being kept by the ISPs. In their view, the debate should instead focus on the reasons for, and conditions of, data retention. In the view of Carlos Afonso18 for instance, court orders and warrants for user data records should be accompanied by an audit on how those will be kept, recorded, and protected. In

Track 2


, about

the Responsibility of actors


, most commentators argued in favor of full net neutrality, and felt that neither the State nor private providers should monitor what users do on the internet because these actions are fully private. One participant illustrated his position by saying that if parents are concerned with child pornography or other risks to their children, they should install filters, instead of calling for State intervention. In spite of many controversies at play in the internet activist community with regard to internet regulation and the Civil Framework itself, at the National Conference on Communication (CONFECOM) in December, the Code proposal was easily approved. This sharply contrasted with the gridlock met in other areas of debate. However, the processing of the draft Bill for the Code may not be as smooth and easy.

A provisional conclusion


The complex intersection between the processing of the “Azeredo Bill” and measures against child pornography show how gender and sexuality have been at the heart of internet politics and regulation debates in Brazil. However, this centrality does not necessarily translate to the discourses, analysis and the political claims of social actors involved in sexual politics, on the one hand, and digital politics, on the other. The processes described and opinions recorded above, as a part of a case study, have confirmed our initial hypothesis that knowledge and interest about internet regulation among feminists and LGBT activists is scarce, even today, when those two communities are increasingly involved with initiatives of media monitoring, including TV. There is no clarity or positioning among those constituencies regarding the ways in which gender and sexuality issues are at play in the political dynamics of internet regulation. We had optimistically predicted that the mobilization for the National Conference on Communications (CONFECOM), as well as the consultation about the Civil Framework, could capture their political imagination in relation to internet regulation.19 However, neither feminists nor LGBT activists attending CONFECOM participated in the working group that discussed the internet, nor contributed to the first phase of the consultation on the Civil Framework. We still do not have sufficient information to analyze more precisely what underlies this apparent lack of interest,20 but we may raise some hypotheses:


  • First, the terms of digital politics debates are framed in language that is exceedingly technical and complex, and feminists and LGBT activists do not have enough technical knowledge to productively engage with issues such as user-data retention. This should not be a surprise, as one of the experts interviewed told us that even cyber activists themselves do not always make the distinction between user-data retention by ISPs and the undue use of this data for non-authorized commercial uses.

  • In addition, a perception seems to prevail among feminists and LGBT activists that internet use in Brazil is still restricted to the wealthier strata of the population, while radio and TV are more strategic advocacy targets, because they reach a larger audience. This perception might be leading them to overlook the increasing convergence of TV, radio, press and the internet, quite palpable today.

  • Finally, our assessment, on the basis of our interaction with feminist and LGBT activists, both in the context of this research project and as a result of long-standing ties, is that these communities have not fully apprehended the meaning of the internet as a cultural, social and political domain. As such, it frequently mirrors offline life in terms of intersections and contradictions between public and private, bodies, images and technologies, in which individuals are inevitably immersed in an unstable and intricate web of power, discipline, resistance and contestation. Feminist and LGBT groups view the internet mainly as a communication tool and predominantly engage with its superficial layers, without delving into the technical and political complexities at play.


Digital activists, on the other hand, are aware of the way in which the issue of pedophilia has overlapped with, and contaminated the debate on regulation, bringing criminalization and vigilantism into the mix. However, in the debates calling for freedom of expression that characterized the 2009 campaign against the “Azeredo Bill”, issues of gender and sexuality were never made explicit. As seen in their contributions to the Civil Framework consultation, cyber activists have by and large expressed appreciation and commitment to privacy rights and net neutrality issues. In our view, although no strong interaction exists between them and the world of sexual politics, their stand is very auspicious. If, in society at large, the appraisal of privacy is expanding, in the long run, this may favour the further development of sexual and reproductive rights. Additionally, in our view, current debates regarding a Civil Framework that would regulate the internet are potentially valuable as they go against the dominant tendency in Brazilian political culture to resort to criminal law as a pedagogical instrument. This strategy, typical among conservative sectors, has recently permeated sexual rights movements. The national LGBT movement is currently campaigning to pass a Bill that would criminalize homophobia, while in 2005 another Bill was submitted to the House, to criminalize discrimination against People Living with HIV/Aids. If feminists and LGBT activists enter the internet regulation debate as it is now framed, they may gain in terms of exposure to theories of rights and justice that deeply criticize the easy recourse to criminal law, in particular as regards sexual matters. In addition, the strong commitment to constitutional principles of privacy and freedom of expression, as well as net neutrality present in the internet Civil Framework debate may prevent the moral panic vented by the issues around child pornography from spilling over the intersection between gender, sexuality and the internet.

1 Another important event, by the end of 2009, preceded by a long and complex process of preparation, was the first National Conference on Communication (CONFECOM), under the title “Means to the construction of rights in the digital era”.

2 We thank Bruno Zilli (Internet and sexuality) and Magaly Pazello (the case of Google and the House Inquiry Commission on pedophilia) for their contributions, as well as the members of the Brazilian EroTICs team.

3 This analysis is based on direct and indirect observation of the debates mentioned above (web online discussions, revision of online and print media sources, participation in relevant events); and interviews with key actors: Carlos Afonso and Graciela Seilamen (NUPEF) , Gustavo Gindre (Intervozes Collective and representative at CGI.br at the time of the interview), Thiago Tavares (director of SaferNet), Dr. Pedro Abramovay and his team (Dept. of Legislative Affairs of the Ministry of Justice), Priscila Schreiner (Federal Public Attorney, São Paulo Desk).

4 Source: IBOPE opinion research leader in the country.

5 In 2008, roughly 50 percent of Orkut worldwide membership was Brazilian (around 23 million people).

6 Equality, privacy, freedom of expression and non-discrimination are guiding principles of the 1988 Constitution, while recent local legislation and jurisprudence present a strong case against LGBT discrimination. Since 1995, the Federal Government has developed a national mechanism for human rights; a Special Secretary for Women’s Public Policy was created in 2003), and a National Secretary for Human Rights in 2004, both part of the President’s Cabinet; as well as the Program Brazil without Homophobia.

7 This dimension will be investigated in the next stage of the research, by two complementary strategies. The first is a survey, currently underway among LGBT activists, on internet usage and perceptions about regulation. The second will be the ethnographic observation and analysis of three relevant online dynamics at play in Brazil: a) a lesbian virtual community (Leskut) with strict internal rules of conduct; b) observation and analysis of the process of sexual sanitization of Orkut that appears to have occurred after the Orkut case on pedophilia (mentioned below in this article); c) analysis of sites and communities that address the abortion debate: pro-life and pro-choice abortion sites and online communities, communities that share abortion experiences, sites that sell or provide information on Misoprostol (the best known, most effective and safest pregnancy termination drug in the market).


9 The children and adolescent rights agenda has a long history in Brazil, which can be traced back to the democratization period. It rapidly consolidated institutionally in the 1990’s, particularly with the adoption of the ECA Statute. The architecture of that Bill includes accountability mechanisms at various levels and a network of local councils designed to protect children’s rights (Conselhos Tutelares). Since then, sexual violence, abuse and child/adolescent prostitution have been topics addressed centrally by this machinery.

10 The Ministério Público Federal (MPF) was established by the 1988 Constitution. It combines the functions of a public attorney office (for federal crimes) with a broader mandate that includes constitutional control (protection of fundamental rights) and the protection of so called “diffuse rights”, which encompass those of children and adolescents, the environment and consumers’ entitlement. The MPF also has investigative functions and in recent years has intervened in a wide range of operations (political corruption, drugs, the right to health, children’s rights, environment, etc.)

11 TAC is one instrument typically adopted by the MPF in criminal or civil cases in which a diversity of public and private actors are involved. The signing of a TAC implies periodical assessments of its implementation by the various parties involved. Non-compliance leads to civil and criminal sanctions.

12 TAC is one instrument typically adopted by the MPF in criminal or civil cases in which a diversity of public and private actors are involved. The signing of a TAC implies periodical assessments of its implementation by the various parties involved. Non-compliance leads to civil and criminal sanctions.

13In an interview done after the “Turko Operation”, one reporter asked the representative of the MPF (São Paulo) if a person found with child pornography material in the spam of his or her email system could be indicted and he responded that yes, that this would fall into the category of possession.

14 While the debate on cybercrime has reached the Senate; State and municipal specific legislation has also been adopted to regulate the access to the Web in both public and private internet access points (telecentros, lan houses and cybercafes). These provisions determine compulsory identification of users and retention of log files. Regarding abortion, we can also identify evidence of official vigilantism on the internet. Resolution 911 from the National Agency for Sanitary Surveillance (ANVISA), written in bluntly moralistic terms, prohibits the advertisement of Misoprostol on the internet. While innocuous – since the sites that have been prohibited are located in other countries and can easily dislocate elsewhere when detected – this measure is aimed at stigmatizing a product that widely endorsed by agencies such as the World Health Organization (WHO), as the safest means to reduce the risks of a clandestine abortion.

15 The Decalogue may be accessed at http://www.cgi.br/regulamentacao/resolucao2009-003.htm, (Accessed on January 23rd, 2010). According to one of our interviewees, given its multi-stakeholder nature, it is not exactly easily for CGI.br to achieve political consensus on controversial political issues such as internet content regulation.

16 Despite this statement in recent years the president and other members of the Federal Executive branch have openly complained about press criticism and the negative effects of media influence on the mindset of the population.

17 Amadeu is a sociologist, PhD in Political Science (University of São Paulo). He teaches at the Graduate School of Communication at Casper Libero University and is an activist in the Free Software movement. His position was expressed in public debates about Civil Framework.

18 Carlos Afonso is an APC associated director of NUPEF – Núcleo de Pesquisas, Estudos e Formação da RITS – Rede de Informações para o Terceiro Setor (Research, Studies and Training Unit at RITS – Third Sector Information Network) and member of the CGI.br board.

19 We have disseminated the information about the consultation among feminist and LGBT activists on numerous forums and e-lists, with null results.

20 This is one aspect to be investigated in the next steps of the research project.