UPDATE: On 30 June 2020, the Brazilian Senate passed “PLS 2630/2020” (the fake news law) with some key amendments that made government identity verification for accounts optional, excluded social media networks from the mandatory traceability provision (while keeping this requirement in place for messaging services like Signal and Whats App) and some other scope related changes. All the other concerns highlighted below remain a part of the bill passed by the Senate. Additionally, Article 37 of the law mandates that social networks and private messaging apps must appoint legal representatives in Brazil with the power to remotely access to user databases/logs. This pseudo data localization measure poses massive privacy concerns while undermining the due process protections provided by US laws such as the CLOUD Act and Electronic Communications Privacy Act. Both of these laws require US providers to satisfy certain procedural safeguards before turning over private data to foreign law enforcement agents.
The law will now move to the Chamber of Deputies, the lower house of the National Congress in Brazil, for debate and passage. The changes made to the law since the introduction of its most regressive version on June 25 showcase that while there have been some improvements (in the face of widespread criticism), many dangerous provisions remain. We remain committed to engaging with Brazilian policymakers to resolve the underlying issues while protecting privacy, security, and freedom of expression. Local civil society Coalizão Direitos na Rede have been very influential in the debate so far, should be consulted as the bill moves to the Chamber of Deputies, and are a good source of information about what’s happening.
Original Post from 29 June 2020
While fake news is a real problem, the Brazilian Law of Freedom, Liability, and Transparency on the Internet (colloquially referred to as the “fake news law”) is not a solution. This hastily written legislation — which could be approved by the Senate as soon as today — represents a serious threat to privacy, security, and free expression. The legislation is a major step backwards for a country that has been hailed around the world for its landmark Internet Civil Rights Law (Marco Civil) and its more recent data protection law.
While this bill poses many threats to internet health, we are particularly concerned by the following provisions:
Breaking end-to-end encryption: According to the latest informal congressional report, the law would mandate all communication providers to retain records of forwards and other forms of bulk communications, including origination, for a period of three months. As companies are required to report much of this information to the government, in essence, this provision would create a perpetually updating, centralized log of digital interactions of nearly every user within Brazil. Apart from the privacy and security risks such a vast data retention mandate entails, the law seems to be infeasible to implement in end-to-end encrypted services such as Signal and WhatsApp. This bill would force companies to leave the country or weaken the technical protections that Brazilians rely on to keep their messages, health records, banking details, and other private information secure.
Mandating real identities for account creation: The bill also broadly attacks anonymity and pseudonymity. If passed, in order to use social media, Brazilian users would have to verify their identity with a phone number (which itself requires government ID in Brazil), and foreigners would have to provide a passport. The bill also requires telecommunication companies to share a list of active users (with their cellphone numbers) to social media companies to prevent fraud. At a time when many are rightly concerned about the surveillance economy, this massive expansion of data collection and identification seems particularly egregious. Just weeks ago, the Brazilian Supreme Court held that mandatory sharing of subscriber data by telecom companies was illegal, making such a provision legally tenuous.
As we have stated before, such a move would be disastrous for the privacy and anonymity of internet users while also harming inclusion. This is because people coming online for the first time (often from households with just one shared phone) would not be able to create an email or social media account without a unique mobile phone number.
This provision would also increase the risk from data breaches and entrench power in the hands of large players in the social media space who can afford to build and maintain such large verification systems. There is no evidence to prove that this measure would help fight misinformation (its motivating factor), and it ignores the benefits that anonymity can bring to the internet, such as whistleblowing and protection from stalkers.
Vague Criminal Provisions: The draft version of the law over the past week has additional criminal provisions that make it illegal to:
- create or share content that poses a serious risk to “social peace or to the economic order” of Brazil, with neither term clearly defined, OR
- be a member of an online group knowing that its primary activity is sharing defamatory messages.
These provisions, which might be modified in the subsequent drafts based on widespread opposition, would clearly place untenable, subjective restrictions on the free expression rights of Brazilians and have a chilling effect on their ability to engage in discourse online. The draft law also contains other concerning provisions surrounding content moderation, judicial review, and online transparency that pose significant challenges for freedom of expression.
Procedural concerns, history, and next steps
This legislation was nominally first introduced into the Brazilian Congress in April 2020. However, on June 25, a radically different and substantially more dangerous version of the bill was sprung on Senators mere hours ahead of being put to a vote. This led to push back from Senators, who asked for more time to pursue the changes, accompanied by widespread international condemnation from civil society groups.
Thanks to concentrated push back from civil society groups such as the Coalizão Direitos na Rede, some of the most drastic changes in the June 25 draft (such as data localisation and the blocking of non-compliant services) have now been informally dropped by the Rapporteur who is still pushing for the law to be passed as soon as possible. Despite these improvements, the most worrying proposals remain, and this legislation could pass the Senate as soon as tomorrow, 30 June 2020.
We urge Senator Angelo Coronel and the Brazilian Senate to immediately withdraw this bill, and hold a rigorous public consultation on the issues of misinformation and disinformation before proceeding with any legislation. The Commission on Constitution, Justice, and Citizenship in the Senate remains one of the best avenues for such a review to take place, and should seek the input of all affected stakeholders, especially civil society. We remain committed to working with the government to address these important issues, but not at the cost of Brazilians’ privacy, security, and free expression.