Brazil’s Marco Civil da Internet may demonstrate why good process could trump final outcomes in public decision-making.
For anybody who cares about a healthy Internet or a healthy democracy, Brazil is offering some really important, live examples.
Immediately post-World Cup, that may not be the lede one would expect to read, but it is true. (As many others have pointed out, this is a country of complicated and interesting political tensions.)
I spent time last week in the country’s capital, Brasilia, learning about the recently-enacted Marco Civil da Internet from representatives in the Presidency, the Ministries of Justice and Culture, and the state telecommunications regulator (ANATEL). These discussions – and many others with stakeholders from civil society, telecommunications, and the citizenry – are part of a three-week study tour hosted by ITS Rio, whose staff shepherded the bill and thus have a unique perspective on how this law came to fruition.
The Marco Civil is civil legislation that articulates important elements of how the country will regulate privacy, freedom of expression, net neutrality, and a host of other Internet and society issues.
The substance of the law emerged from colleagues at the Center for Technology and Society of the Law School at the Fundação Getulio Vargas in Rio who had been thinking for some time about how to respond to the country’s only (and inappropriately targeted) legislation about the Internet, which focused on cyber crime. The country’s former President Lula was also developing an interest in these issues, perhaps due to widespread pressure from Brazilian civil society, and the Ministry of Justice was asked to launch a public consultation about the issue.
In addition to a set of town hall meetings around the country, this government-civil society collaborative deployed a tool unprecedented in Brazilian lawmaking, but appropriate for the topic: an online platform for interested parties to submit their comments, suggestions, ideas, and concerns. The response from interested parties was significant, and over the course of the next few years, the country managed to pass Internet legislation that is globally viewed as a kind of gold standard.
Since I care about everyday people having greater ownership over the public decisions that affect their lives, I was curious to understand what impact this online public engagement actually had: what about the bill might have been different had the public not participated so robustly?
I asked our government discussants this question and their answer was “no question, it was totally different.” They said that debates in Congress actually shifted on multiple occasions due to the external inputs that this process channeled.
This was due in part to the high rate of participation among academics, tech elite, and civil society actors who had direct expertise in the technical and political issues under discussion, and also because the organizing team within the government accepted every invitation to debate the merits of the legislation, no matter whom their hosts.
Like any multi-year legislative process, the Marco Civil encountered challenges – not the least of which were the “Snowden revelations,” which brought the bill to the forefront as a potential response by the Brazilian government, but also threatened to pollute its contents with politically-driven provisions that would ultimately be bad for the Internet.
The final law was approved in April of this year, but many important issues still need to be clarified. Brazil’s definition of net neutrality and guidelines for which agency will oversee its implementation remain unspecified. The retention of data (for what purposes, on what grounds, and with what mechanisms) and key aspects of copyright law also need to be clarified. With elections upcoming, the country waits to see how these major, complicated legal issues will be resolved.
What strikes me most about this case is not actually what it accomplished – there is widespread acknowledgment that the Marco Civil is incomplete – but rather the process by which it was developed.
We heard time and again that this inclusive, responsive, transparent, and digital process was just as important, if not more important, than the outcomes. We also heard widespread desire to repurpose the same process on other policy issues.
It is likely because this particular set of internet and society issues is embedded with a particular set of values about openness, sharing, and collaboration, that a public governance process that was deliberately and digitally consultative emerged. My colleague Primavera De Filippi observed that this process was probably the best calibrated it could have been for the people who most care about this issue (let’s call them political tech geeks). Process matched subject, values, and participants in a very elegant and complete manner.
Skeptics might ask: if we were to debate agricultural issues, would an online platform be the best way to capture the opinions of the people who most know and care about that issue? And should we design our participatory platforms for those with the highest of stakes in the issues? I am not convinced that an online platform is necessarily the best tool for soliciting public opinion on public problems (internet penetration in Brazil is about 67 percent), nor that we should design participation mechanisms to suit the people who are most likely to engage.
However, I have come away with the opinion that our American governing context is overly attached to our issues. There are no “wins” without issue advancement (see: Congressional blockage). Here in Brazil, a “win” has been reframed in this instance to balance participatory process with issue advancement, highlighting the role of public servants as masters of good process, not simply issue advocacy.
In the United States, public trust in governance is at record lows – and I have observed through recent research that Americans are barely able to even perceive the presence and resources of government in their lives, even though they benefit from it multiple times per day. If our mechanisms for public problem-solving looked more like that of the Marco CiviI, might we more meaningfully utilize our opportunities to influence policy?
I am reminded this week that an open society should not just enforce issues such as net neutrality and open data – although those are ever more important – but should credibly use open practices for everyday people and for public officials to jointly shape legislation in the public interest. The vibrance of Brazil’s Internet is still an open question, but we can all learn from a process that was credibly participatory.
About ITS Rio
The mission of the Institute for Technology & Society (ITS) is to ensure that Brazil responds creatively and appropriately to the opportunities provided by technology in the digital age, and that the potential benefits are broadly shared across society. Through its own research and in partnership with other institutions, ITS analyzes the legal, social, economic and cultural dimensions of technology and advocates for public policies and private practices which protect privacy, freedom of expression and access to knowledge. The Institute also offers innovative education, training and capacity development to individuals and institutions to enable them to understand the promises and challenges of new technology. Last, not least, ITS aims to strengthen the voice of Brazil, Latin America and the Global South in international debates on technology and its regulation.