Despite the existence of a good number of analytical documents that typify the diverse threats that the uncontrolled advance of monopolistic corporations over the internet and digital technologies poses to human rights and the equitable development of populations, state action in the face of this fact, both in terms of government measures and legislative regulation, has been slow.
By Internet Ciudadana
Partly due to the speed of technological change, partly because of the complexity of the cross-cutting nature of digitalisation and the possible implications of laws that could affect the rights that we want to defend, the challenges are many and the dissemination and public debate on cases of progress in our region is scarce.
The Latin American-Caribbean space Internet Ciudadana organised a virtual conversation to address this key aspect and raise awareness outside the limited specialised spaces.
On the need for regulation, British-Ecuadorian journalist Sally Burch (ALAI) pointed out that although in the early days of the internet the network was claimed to be a free space that did not need regulation, this situation has changed, particularly due to the growing concentration and control exercised by the main platforms with which we interact. The business model of these corporations is based on the collection and processing of data of all kinds, in a way that not only leaves individuals defenceless, but also exercises unfair competition against small and medium-sized enterprises, while also taking on functions and services that used to correspond to public entities, more often than not without democratic mechanisms of accountability.
Paula Martins of the Association for Progressive Communications (APC) noted that the internet continues to have great potential as an enabler of rights and social and economic development, but that the risks it also entails are now better understood. Among the major changes of the last decade, it can be noted that the network is much broader and makes personal interactions and experiences with digital technology more complex. In addition, there is a new configuration of the market and the economy around the internet with actors with vast influence beyond the economic sphere, whose operation is arbitrary, based on rules defined by themselves.
One problem is that it is being regulated, but not always in a positive way for users. The question then, says Martins, is what kind of regulation is needed to maintain and strengthen the internet we want, “a global, open, free, decentralised internet, truly at the service of people, of their rights both individually and collectively”.
In terms of the consensus needed to move forward, there are some areas of difficulty. Technology is an issue that in itself can be exclusionary because of a lack of understanding of how it works and its impact, especially if the debate is conducted in technical jargon. For legislators who do have access to trained assistance, the challenge is to keep pace with the speed at which these technologies advance and mutate. There is little time to understand their impact and discuss the solutions we as a society want to adopt.
Regulating the internet requires creating a context of pluralistic and inclusive public debate that enables democratic solutions. The most important thing is to “break the logic that has prevailed in our region of adopting legislation and regulation without public debate, in an accelerated manner in response to political or other situations or interests, without a thorough analysis of the implications of each proposal, passing them through the lens of regional and international human rights standards and constitutional guarantees,” said the researcher.
Moreover, in addition to the issue of online content moderation, an important issue that has occupied much of the debate, it is necessary to introduce an agenda that includes content navigation so that the internet remains free, neutral and secure, privacy and data protection, but also access and infrastructure. It is necessary to promote a regulatory environment that guarantees the non-fragmentation of the internet, accessibility, access alternatives for those who approach it from the self-determination of communities, put a stop to monopolies and oligopolies, address issues of digital security for women, the LGBTI+ population, among the most vulnerable sectors, and address accountability for human rights violations online.
The Brazilian case
In Brazil, there is an overlapping and contradictory regulatory environment that even leads to great legal uncertainty, says Renata Mielli, coordinator of the Barão de Itararé Centre for Alternative Media Studies and member of the Coalition for Online Rights. Moreover, legislating is complex because of the large interests involved.
In the face of the rapid evolution of digital technologies, it is necessary to have laws that are flexible but whose basic assumptions must be based on the defence of national sovereignty, the reduction of inequalities and the fight against the tendency imposed by companies to deepen a state of social surveillance. Laws that respect fundamental rights and seek to produce a more democratic environment based on the use and existence of technologies.
In a complex scenario, as a result of the ever-existing correlation of interests and forces, it is possible to start from three major Brazilian legislations: the Civil Framework for the internet, the General Data Protection Law and the possibility of the approval of Law 2630, which contain a set of principles on which other laws and judicial and civil initiatives can be reflected.
Their main feature is the protection of users and individuals. Recently, even the approval of the inclusion in article five of the Federal Constitution of a provision recognising data protection as a fundamental right was consolidated.
Among many other initiatives, a bill currently under discussion that has been modified as a result of the action of digital rights organisations is the one that would regulate the actions of internet platforms, establishing rules of transparency for the activity of these companies, particularly with regard to content moderation, in order to defend users’ freedom of expression.
This law 2630, soon to be voted on, which was born as a fight against disinformation and ended up becoming a starting point for the minimal manipulation of digital platforms, would also create transparency mechanisms for online advertising, a code of conduct, a mechanism for sectoral participatory regulation, sanctions for companies that do not respect national legislation, among other devices.
Along with very marked market interests in the field of infrastructure behind the state’s demand for policies that guarantee access to the internet, there is also an advance of policies and discussion on the issue of artificial intelligence with very little social participation, despite its great impact on the configuration of society.
Uruguay, from pioneer in digital sovereignty to pawn of corporations
In 2008, a law on personal data protection was passed in Uruguay, defining it as a human right, perfectly applicable in its use in the digital space, said Enrique Amestoy, an activist for Technological Sovereignty and currently a systems administrator and programmer in the sectoral commission for scientific research at the University of the Republic.
An important step, in December 2013, was the approval of the Free Software Law in the State (No 19179), which had its difficulties to be put into practice. In April 2014, Decree 92/014 was instituted, by which institutional emails must have the domain “.gub.uy” or “.mil.uy”, prohibiting the use of any other domain name, in accordance with the “Guidelines for the implementation and use of secure email services”.
Another important achievement in Uruguay, fundamental for Latin American countries, is the obligation of the State to have the data and computer systems of the Central Administration hosted in secure data centres located in national territory (art. 3° of Decree No. 451/009 of 28 September 2009), which prevents sensitive citizen data from being diverted to private corporate clouds. Finally, in April 2018, the Advanced Electronic Signature was established (Decree 70/2018), which, according to the government website, facilitates the completion of online procedures with various public bodies.
In terms of issues of concern, in which citizen participation is fundamental, there is discrimination by payment in content traffic, which affects the declared neutrality of the net, but above all the supranational unbridled power of large technology companies.
As an example, in Uruguay in September 2021, the minister of industry signed agreements with Amazon and Microsoft for the use of the cloud and artificial intelligence systems respectively.
Another example is the recent acquisition by Disney’s “Star+” platform of the streaming rights to Uruguayan football, affecting all users.
Other pressing issues are crimes on social networks, such as harassment, hate crimes or disinformation. We have to think about whether or not the legislation in force in each of the countries for the non-digital world applies to the internet, with the specific modifications required, said the academic.
Ecuador: Progress on data protection and criminalisation of digital security practices
Intermediate legislation and regulation regarding digital rights in Ecuador is taking place in a context of great political polarisation, said Valeria Betancourt, Director of the Information and Communication Policy Programme at the Association for Progressive Communications (APC). This affects the deterioration of the quality of public debate on social media through the presence of parastatal networks that organise to make the online environment more toxic.
In the midst of these setbacks in terms of digital rights in Latin America and Ecuador, there are some notable advances. One of them is the approval in Ecuador of the Law on Personal Data Protection, which constitutes an enabling mechanism for other rights and aims to ensure that the capacity for informational self-determination in the digital era is strengthened.
On the other hand, the persistent digital divide causes problems of severe exclusion due to the tendency for many aspects of people’s lives and work to take place online, which has been accentuated by the health emergency, the confinement of the population and the virtualisation of many aspects of social and economic dynamics.
The existence of online data has increased significantly and the modalities of data analysis have become so sophisticated that they yield very revealing aspects of people. So whoever has access to our personal data can really know a lot about us, our medical background, sexual orientation or political preferences, among many other things.
In Ecuador there have been several episodes of massive data breaches. In 2019 a leak exposed names, financial information and other personal data of almost the entire population of the country. Recently, customer data was leaked from one of the national banks with the largest number of people in the banking system.
The current data protection law fills a huge regulatory gap, containing clear rules to avoid arbitrary and legitimate uses or discriminatory consequences. After a long process, a paradigm is set by the level of alignment of this law with international human rights standards.
It is a strong instrument that establishes rules for the activity of public and private actors on the collection and processing of personal data, allowing not only to give effect to the right of individuals to be informed about the purposes of such collection and processing, but also to establish what information can be collected, how it is authorised, for how long and how the information is stored. Finally, it includes essential rights related to informational self-determination such as access, rectification, erasure and objection.
It provides fairly clear definitions of what constitutes personal data and also has a comprehensive list of principles widely recognised as general principles of protection found in similar regulations in other countries and in international instruments, while establishing an independent supervisory authority with the rank of superintendence as well as appropriate mechanisms to ensure the application of the law.
On the other hand, an event that is happening right now in Ecuador is the case of Ola Bini, a member of the IT security community who is being prosecuted for accusations that do not hold water, Betancourt said.
Just when we think about putting the right to privacy and to communicate securely in the digital environment into practice, we cannot fail to refer to the crucial importance of the work that Ola Bini and the cyber security community is doing in developing tools to protect this right, identifying vulnerabilities in public and private digital infrastructures and finding solutions to improve the security of these infrastructures.
The use of a screenshot from the Tor browser, which allows anonymous, encrypted and secure movement on the internet, to accuse Bini of arbitrary interference in computer systems is highly problematic. This is terribly serious, because not only is the activity of an expert in digital security being judged, but also the use of these tools, setting a precedent of criminalisation of the use of encryption, recognised by experts from the United Nations and other bodies as central to the possibility of exercising freedom of expression and other rights.
Internet Ciudadana is an initiative under construction that aims to generate a Latin American and Caribbean space where organisations working for social justice, democracy, democratisation of communication, free and open software, net neutrality and a wide range of human rights, as well as for the empowerment of citizens, can come together to build common agendas towards the Internet of the people.
Contact: fsi-alc@internetciudadana.net
