[bestbits] Re: [governance] A positive right to privacy in the most current version of Brazilian Internet Bill of Rights

Thu Jun 13 13:05:35 EDT 2013

I understand your point and that is why language and grammar  actually
matters in bill drafting (every verb and comma matters!). I will look
carefully at the Portuguse version and talk to Molon and other folks about
it. But I do think we have a good opportunity to ensure that the positive
side is also established. A question to pose would also be if the Marco
Civil has space to set norms to "protect" Brazilian citizens from
overreaching acts of foreign agencies.

On Thu, Jun 13, 2013 at 12:57 PM, Ivar A. M. Hartmann <
ivarhartmann at gmail.com> wrote:

> Oh, I see. I didn't know of this this concept for the term 'positive
> right', especially if its opposite is 'negative right', as you mentioned.
> Positive right in this sense is very commonly understood as an entitlement
> that the state positively do something - a provision or service of some
> kind. It follows that social rights are thus positive rights.
> Again, I believe all rights have both dimensions (negative and positive)
> and fully support the view that there are positive actions the state must
> take to protect privacy, instead of merely foregoing to violate it.
> My only point is that the articles in the Marco Civil that you mentioned
> do not convey that idea. They *can* be read as dispositions that protect
> only a negative right to privacy.
>
> Best,
> Ivar
>
>
> On Thu, Jun 13, 2013 at 1:24 PM, Carolina Rossini <
> carolina.rossini at gmail.com> wrote:
>
>> Dear Ivar,
>>
>> I understand privacy has been traditionally considered a negative right,
>> but Marco Civil is trying to change that. A positive right is a right that
>> has been affirmed by statute, so in law or in a constitution of some kind,
>> and opens the door for claims. I also see it as a positive right, since it
>> gives us more control over our data.
>>
>> However, if you have a better language, you and any other person, should
>> feel free to suggest. We still have time to improve.
>>
>> I will be with Molon next week, so I would be happy to consolidate
>> suggestions and deliver to him.
>>
>> C
>>
>>
>> On Thu, Jun 13, 2013 at 12:06 PM, Ivar A. M. Hartmann <
>> ivarhartmann at gmail.com> wrote:
>>
>>> Carolina,
>>>
>>> Maybe you feel other articles in the current draft of Marco Civil are
>>> better evidence of a positive dimension of the right to privacy. But I
>>> don't see how articles 3, 8 and 10 are an evidence of that.
>>> *These dispositions are all compatible with the understanding of
>>> privacy as a negative right alone*.
>>> That is not to say privacy doesn't have a positive dimension - I believe
>>> all rights have, including free speech. Such isn't the prevalent view in
>>> the US, however. A more clear adoption of the positive dimension by the
>>> Brazilian legislator is therefore in order.
>>> Best regards,
>>> Ivar
>>>
>>>
>>> On Thu, Jun 13, 2013 at 12:06 PM, Carolina Rossini <
>>> carolina.rossini at gmail.com> wrote:
>>>
>>>> Hi all,
>>>>
>>>> Taking in consideration all the recent news, I would like to share with
>>>> you the current version of the Brazilian Internet Bill of Rights (Marco
>>>> Civil) in english. This is not the same version available in the Brazilian
>>>> Congress website, it is the final version put out by House Representative
>>>> Molon (thus, newer). There is a positive right to privacy in our bill, so
>>>> it would be interesting to think if this is the time to ask the same in
>>>> other countries. Below, articles 3, 8 and 10 that deal with the issue.
>>>> Article 10 has been criticized by privacy advocates from other countries
>>>> due to log retention, but I do feel it is something that has been
>>>> incorporated in our culture, since been debated since 2000 in Brazil and
>>>> the bill also requeres court order (even before we started the Marco Civil
>>>> debate). (Joana, in the list, can provide her views on this)
>>>>
>>>> *Article 3 The regulation of Internet use in Brazil underlies the
>>>> following principles:*
>>>>
>>>> *II – protecting privacy;*
>>>>
>>>> *Article 8 Protection of the right to privacy and freedom of
>>>> expression in communications is a prerequisite for the full enforcement of
>>>> the right of access to the Internet.*
>>>>
>>>> *Article 10. Record retention of Internet connection and access to
>>>> application logs, for the purposes of this Act, must protect the privacy,
>>>> private life, honor and image of the parties directly or indirectly
>>>> involved.*
>>>>
>>>> *§ 1 The provider responsible for record retention will only be
>>>> required to provide the aforementioned logs, alone or combined with other
>>>> information that may help identifying a user or terminal, upon court order,
>>>> as set forth in Section IV of this Chapter.*
>>>>
>>>> * *
>>>>
>>>> *§ 2 Security and confidentiality measures and procedures must be
>>>> communicated by the connectivity services provider and clearly meet the
>>>> standards set forth by regulation.*
>>>>
>>>> * § 3 Breach of the aforementioned confidentiality right is subject to
>>>> criminal, civil or administrative sanctions.*
>>>>
>>>> I will host Mr. Molon next week in meetings at Harvard (including at
>>>> Berkman). So, if you have any thoughts or questions you want to ask him or
>>>> contributions, please let me know. Talking to his assessors, we concluded
>>>> that a letter of support, or words of support focused on how Marco Civil
>>>> creates a positive right to privacy are also timely adequate and welcomed.
>>>>
>>>> Thank you,
>>>>
>>>> Carol
>>>>
>>>> --
>>>>
>>>> *Carolina Rossini*
>>>> http://carolinarossini.net/
>>>> + 1 6176979389
>>>> *carolina.rossini at gmail.com*
>>>> skype: carolrossini
>>>> @carolinarossini
>>>>
>>>>
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>>>
>>
>>
>> --
>> *Carolina Rossini*
>> http://carolinarossini.net/
>> + 1 6176979389
>> *carolina.rossini at gmail.com*
>> skype: carolrossini
>> @carolinarossini
>>
>>
>

-- 
*Carolina Rossini*
http://carolinarossini.net/
+ 1 6176979389
*carolina.rossini at gmail.com*
skype: carolrossini
@carolinarossini
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