Editor’s Note: Welcome to our weekly Reality Check column. We’ve gathered a group of visionaries and veterans in the mobile industry to give their insights into the marketplace.
In a world where close to 2 billion people (and rising) use the Internet and spend an average of 70 hours a month online, the huge amount of data circling on this web of connections is not surprising. In Brazil, the numbers are also extremely impressive. Brazil is a monster country with monster numbers. It is the fifth country in the world in terms of connections; the percentage of users is rising 5% to 10% a year, and close to 40 million people access the Internet regularly, spending an average of 71.5 hours online a month, above the global average.
With all this time being spent on the Web, things are happening in a fraction of a second. Deals are made, products are bought, companies fail, information is exchanged and much more. Faster than we could ever imagine, the Internet is remodeling the world we live in. The difficulty now is how to stop civilians and companies from breaking laws, or better yet, how to prevent online illegal behavior in the first place.
In the beginning, it was thought that the community could regulate and monitor itself, but obviously that did not work out. Ultimately, people had to resort to the judiciary to take legal action, and companies found the need to hire professionals to monitor inappropriate behavior on their sites.
During the 1990s, many respected academics thought the Internet was unregulated, among them Professor Nicholas Negroponte, co-founder and director of MIT’s Media Lab.
On the other hand, in the book, Who controls the Internet?, Harvard law professor Jack Goldsmith and Columbia law professor Tim Wu point out several cases in the past decades in which states somehow regulated the use of the Internet. Nowadays, we know the Internet can be at least partly regulated. These Internet regulation measures are being taken to prevent future damage to companies and to civilian life.
There is no escape from at least partial Internet regulation; we need it to feel as safe online as we do in real life, and for that, we are going to need some intervention from government. The biggest fear is whether the state will go too far with regulation. And the biggest problem in this discussion concerns how to regulate something that is worldwide.
The International Telecommunication Union (ITU), an agency of the United Nations, is discussing the possibility of centralizing Internet regulation. The idea is to make a global pattern, a framework of regulations. The thought that one agency could establish ground rules for Internet usage worldwide is reassuring to some countries and disturbing to others. Much more debate over this issue is necessary in the years to come.
Meanwhile, governments, judges and legal firms have been struggling with Internet regulation and are having to adapt to new ways of social and business interaction. In Brazil, Internet regulation projects are on the legislative agenda. A proposal called “Marco Civil Regulatório da Internet” (Civil Regulatory Mark of the Internet), the draft law numbered 2126/2011, was developed to establish the Internet as a neutral ground where people can feel safe from freeloaders and anyone malicious enough to use the Web as a tool to take advantage of others. The proposal covers topics like online privacy, protection of data, connections, third party responsibilities, evidentiary support and government’s government in these issues.
Article 9 of the bill defines net neutrality to mean that providers have no right to prioritize traffic from certain content on the network. This could end traffic shaping in Brazil.
Have you noticed that every site seems to load faster than YouTube? That’s because your ISP is limiting the speed of YouTube, since it consumes a lot of bandwidth. With net neutrality, that will not be allowed—no traffic shaping. And this would affect every type of connection: ISPs, Wi-Fi services and 3G or 4G connections. The only exception would be for technical restrictions and emergencies, which would be evaluated by the Brazilian Telecommunication Agency, Anatel.
The issue, obviously, is controversial. Many ISPs argue against it, saying that favoring traffic for certain content can improve service quality. They cite the example of VoIP, which should have priority above email, since voice services need to be in real-time, while a simple email can be delayed a few seconds. They also argue that neutrality should be more flexible, taking into account that providers need to deal with bottlenecks.
Too much flexibility may undermine network neutrality for online video websites such as YouTube and Netflix. And there is a conflict of interest since many internet service providers (ISP) also sell cable TV in Brazil, and they don’t want potential customers watching videos on the Internet, or downloading movies and TV series.
However, Anatel, the Brazilian agency that controls and regulates telecommunication, has not yet defined what actions it will take, and it has been evaluating the matter carefully. This leaves a gap in the regulation process.
It will not be an easy task for anyone. Much still has to be debated and settled, but regulation is inevitable and necessary so that users can feel safe and have the legal support to defend their interests.
Márcio Cots is a lawyer, university professor and participant in the Ilaw Program (Cyberlaw) at Harvard Law School. He is also partner of COTS Advogados, specializing in Digital Law.
