[Governance] PL 2630 in Brazil

Ivar A. M. Hartmann ivarhartmann at gmail.com
Tue Jul 7 20:36:16 EDT 2020

Dear colleagues,

Let me take Carlos' important message as an opportunity to share two
concerns and make a contribution on behalf of the Center for Technology and
Society at FGV Law School in Rio de Janeiro (CTS-FGV).

First, the bill was indeed rushed through the Senate and valuable
discussion opportunities have been lost. Many Brazilian activists and
scholars were being forced to go over new 60+ page reports published by the
rapporteur every two days with new versions of the bill, sometimes
containing drastic changes. Right now it seems this will repeat itself in
the House of Representatives, as news outlets today reported that the House
president has declared both his intent to have the bill go through the
House in two or three weeks and his belief in the need for stark punishment
- including criminal prosecution - of people responsible for disseminating
fake news. Because any substantive changes to the bill at this point would
require it to go back to the Senate, it is unlikely that we will see
multiple versions of the bill being formalized every couple of days. This
is good news given how little time civil society in Brazil will have to
make its voice heard.

Second, most if not all previous versions of the bill contained appalling
dispositions that urged Brazilians to sound the alert abroad and I am
thankful that many foreign activists and scholars answered and weighed in.
While there remain controversial and perhaps even unconstitutional
dispositions in the version that emerged from the Senate, none compare in
their predictable negative social impact as the previous version of article
7 that would have forced social networks to required picture IDs from any
user upon registration, or dispositions that would have increased the jail
time for online defamation or even the obligation of social networks to
moderate 'disinformation'.

The attitude of many civil society groups that did not carefully go over
the current version, however, remains one of rejection of the bill in its
entirety. With the text changing rapidly, the Senate’s disregard for civil
society input and elements of the bill lost in translation, many foreigners
who have never had the opportunity to actually read the text of the bill
seem to be under the impression that it still contains all of the worst
aspects of each version that was circulated.

My concern results not only from the fact that this is not the case, but
also from my opinion that there are dispositions in the bill that would
create much needed guarantees to protect users from social networks.
Articles 12 and 13 would enshrine in legislation safeguards that scholars
have recommended for years. It is my opinion, therefore, that civil society
should use its precious time and efforts to criticize and try to repel specific
dispositions (the proverbial bath water) and perhaps save articles 12 and
13, if nothing else - there are other dispositions that are very welcome,
such as articles 14, 15 and 18, first paragraph.

Finally, the contribution of CTS-FGV is precisely to let all
non-Portuguese-speaking stakeholders make up their own mind about the bill.
We have hastily but carefully translated all of the text to English and
made it available here: bit.ly/br_fakenewsbill. While we wholeheartedly
welcome suggestions to improve the final result, we hope that a translation
manually curated by legal researchers will contribute to significantly
enhance the international debate about the bill.

Best regards from Rio,


On Tue, Jul 7, 2020 at 4:15 PM Carlos Afonso via Governance <
governance at lists.igcaucus.org> wrote:

> Dear people, as some of you probably know, the Brazilian Congress is
> discussing a crucial bill of law on fake news. A version of the bill has
> been approved by the Senate (where the proposal originated) and is now
> under discussion in the Chamber of Deputies. Below is a precise review of
> the situation, by the Brazilian chapter of the Internet Society).
> The text refers to the statement on the bill of law published by the
> Brazilian chapter, which can be read here in Portuguese and English:
> https://isoc.org.br/noticia/capitulos-da-isoc-apoiam-nota-tecnica-da-isoc-brasil-contra-o-pl-das-fake-news
> fraternal regards
> --c.a.
> =============================
> This is a brief report on the recent developments in the Brazilian
> Congress regarding the Bill on Fake News.
> Despite strong opposition from civil society organizations and tech
> companies, which asked for a postponing of the voting so that a more
> informed discussion could take place, the Bill has been voted and approved
> by the Senate on June 30. Voting result was 45 in favor, 32 against the
> Bill (1 abstention + the President), from a total of 89 senators.
> The Bill now goes to the House of Representatives, where it can be amended
> or even rejected. If amended, it must come back to the Senate for another
> round of discussion and voting. Forecast is that it might take up to 3
> months for the matter to return to the Senate. *But recent press coverage
> indicates that things might be expedited in the House in a response to
> Bolsonaro's announced willingness to veto some parts of the project that
> might affect "freedom of expression".* If finally approved by the Senate,
> it must be sanctioned by the President, who can interpose his veto to
> specific parts of the text. So we still have many opportunities to fight
> for a much better version of the Bill.
> Some important highlights on the version that has been approved, both
> positive and negative ones:
>    - End-to-end encryption was recognized as legal. But traceability
>    through "forwarding metadata" was kept, and this was the hardest fight
>    so far. Several organizations are threatening to take the matter to the
>    Supreme Court, because of the threat to privacy.
>    - Facial recognition was not inserted as means to identify users (as
>    promised by the Rapporteur the weekend before the vote). Providers are
>    required to develop measures to "identify users" accused of "inauthentic
>    behavior". Collection of phone numbers is not mandatory anymore. The
>    Bill now states that "those apps that rely on phone numbers to function are
>    obliged to suspend services to those phone lines that are cancelled by the
>    operator".
>    - A last-minute copyright rule was suppressed from the Bill in the
>    final round of deliberations.
>    - Data localization was suppressed from the Bill. A CLOUD Act-inspired rule
>    was adopted to oblige companies to provide access from Brazil to data
>    stored abroad.
>    - Mandatory arbitration for Terms of Service was suppressed. The
>    Intermediary Liability regime from the “Marco Civil” stands untouched. But
>    complicated rules related to authorization for providers to remove content
>    immediately remain, in cases of "harmful consequences, information security
>    or user security, threats to the functionality of the service, hate speech,
>    child pornography, support to suicide and self-mutilation", "defamation and
>    slander" against politicians, trademarks, individuals and legal entities,
>    as well as "content that lead to error or confusion, including through deep
>    fakes" (which is very broad). There is a need to ensure that all those
>    reached by the content are also reached by a 'right of reply' in cases of
>    defamation and slander.
>    - The issue of TCP/IP ports in CG-NATed connections still remains.
> We thank the support from other Chapters to the statements we published.
> They were collected here
> <https://isoc.org.br/noticia/capitulos-da-isoc-apoiam-nota-tecnica-da-isoc-brasil-contra-o-pl-das-fake-news>
> and also resonated on Twitter.
> for ISOC-BR
> Flavio Wagner, chair
> --
> Governance mailing list
> Governance at lists.igcaucus.org
> https://lists.igcaucus.org/mailman/listinfo/governance
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