Panic in Brazilian schools

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Government actions to impose duties on platforms in defense of Brazilian Democracy

Ordinance 351/2023 of the Ministry of Justice, imposing certain duties on the so-called “social networks” in relation to the defense of Brazilian Democracy, opened a huge debate in legal and political circles accustomed to the appearances of an internet disconnected from economic, political, even geopolitical realities, in which it, internet, really sit down.

The ordinance, according to information coming through the journalistic news, followed a meeting between Minister Flavio Dino and representatives of the largest “social networking” platforms. At that meeting, Twitter representatives arrogantly and disrespectfully stated that they would not comply with the demands of the Brazilian government. For some of the ordinance's critics, it might be necessary, here, to underline the word “Brazilian”… As the minister reminded the company's representatives, “terms of use” do not overlap with the Brazilian Constitution. In other words, the interests of a foreign company are not above national sovereignty.

Whether or not it was an immediate reaction to this meeting, the urgency of the Ordinance was imposed when it was clear that there was an evident conspiracy to panic Brazilian schools. And this, after everything that happened on the 8th of January: a near-coup that we know very well was not orchestrated 24 hours earlier, but over months and months of posts on Facebook or Twitter, videos on YouTube, messages multiplied via WhatsApp or Telegram. Our government, in the person of the minister endowed with the necessary competence (in every sense), warned that it would no longer be possible to continue tolerating such leniency by US companies towards our Democratic State of Law. Then, he demonstrated that he wasn't kidding: he lowered the Ordinance.

We know that in line with the ultraliberal orientation that presided over the creation of the Civil Rights Framework for the Internet (Law 12.965/2014), the social or economic activities that take place above from the technical layer of the internet are practically safe from any restrictions, unless based on never very agile judicial decisions. While the messages in this layer above the technical layer multiply at the speed of nanoseconds, decisions in court follow at a turtle's pace... This is the controversial article 19, emulated from Section 230 of the Decency Act american.

Article 19 does not refer to socio-digital platforms (as I prefer to call YouTube, Facebook, Amazon, etc.) but to “application providers”, understanding by “applications” the “set of functionalities that can be accessed through a terminal connected to the Internet". What “features” are these? Is a photo I post on Instagram a “feature”? Is Instagram itself a “functionality” or does it rely on “functionalities” contained in the Android operating system, in the traffic exchange points and in the telecommunications networks that allow the transit of internet packages? That definition is missing...

What should be very clear (besides the fact that the Marco Civil is not an “iron-stone clause”…) is that these “social networks” are equivalent to means of social communication, although with some characteristics of their own. Contrary to what could be the “application providers” (whatever is understood as such), YouTube, Facebook, Twitter, not even WhatsApp or Telegram they are not neutral at all in relation to our that circulate in them. These platforms directly interfere with the circulation of this content.

Based on what is posted, they produce an audience to attract advertising placement. The greater the success of a post, the greater the audience, the greater the advertising attraction. It is a business model not very different from the broadcasting model, except for the much greater precision in identifying a potential consumer for an interested advertiser. Instead of very expensive advertisements sent to an immense, diffuse and uncertain audience, as is typical of radio or TV, “social networks” serve advertisements that are much cheaper for the advertiser, sent to a potential consumer individuated by the mining and extraction of their personal data by the algorithms, thus optimizing the cost/benefit ratio.

What we had to be saying now is that, quite simply, they are outside the Marco Civil. And there is no law that directly regulates them. In fact, they take advantage of this legal void to pass themselves off as “application providers” or, another widely used expression, “intermediaries”. And so, among so many other problems, they allow themselves the luxury of simply ignoring Brazilian national interests, if they are not, in fact, at the service of the interests of the country where they have their headquarters...

How did Minister Flávio Dino act? To begin with, he acted politically. It must be made clear: the question, before being legal, is political! The minister is willing to go to the last consequences in defense of Brazilian Democracy and Sovereignty. He stated: “I say again, it's not because the government wants it, it's because society needs it. If they don't understand, they will be forced to understand”. “They”, read “platforms”. After all, this is not a government that salutes the American flag…

In the purely legal aspect, in the absence of a regulatory framework that effectively deals with the political, economic, cultural activities that take place on the internet, the ordinance explores the legal conditions available. It framed “social networks” in consumer protection legislation. Master play! The law ensures that the consumer must receive quality products and services. Certainly, it cannot be meeting the quality, security and other requirements covered by the law, a service that lets its users reach messages propagating violent attacks against children in schools or the central buildings of Brazilian institutions. The ministerial ordinance only determines that the National Consumer Secretariat (Senacom) investigate whether or not the platforms are providing a quality service. If the investigation concludes in the negative, it will be necessary to activate the competent judicial bodies. To this end, naturally, Senacom is oriented to demand the necessary information from the platforms.

The ordinance also determines that the National Secretariat for Public Security (Senasp) take the appropriate measures to protect schools, for which it must rely on the “effective collaboration” of the platforms. It's natural. Any citizen or company must collaborate with the government and the State in fulfilling its (the State's) obligations, as defined in the Constitution. Ensuring the safety of schools, children, teachers, other employees, defending education, is certainly an obligation of the State, citizens, and companies operating in the national territory, including foreign ones.

What are the criticisms? The panacea of ​​“human rights” as if defending children and young people in schools was not respecting a fundamental human right: the right to safety and life. The ordinance also requires Senasp to create a database of “illegal content” to be shared with platforms in order to facilitate the identification of such content and its authors. Well, first: critics and critics should be more concerned with the gigantic databases that these platforms have about us, bases located on servers outside the territory and jurisdiction of our country.

Second: the police and the State itself also have large databases about us for statistical, educational, health, fiscal, and even police purposes. What is the problem with the State having a specific database to repress clearly criminal activities carried out through the platforms, sharing with them to better facilitate the so-called “moderation” practices?

The third Lula administration began and will unfold under much more difficult conditions than the first two. Twenty years ago, the Nazi-fascist, obscurantist, fundamentalist threat was not as clear to the vast majority of democratic politicians and activists as it should be now, after what we have experienced in the last four years, in the electoral process, on the 20th of January. Not even the world was experiencing the bi- or tri-polarity that it is now experiencing, requiring international juggling from Brazil to guarantee its integrity and independence. It seems that there are people who still don't understand the real nature of Lava Jato and the 8 coup, despite Edward Snowden's accusations. We cannot, in view of everything we have already experienced in such a short time as the new government, behave like Chamberlain in Munich. The price to be paid later will be much higher.

*Marcos Dantas He is a retired full professor at the School of Communication at UFRJ. Author, among other books, of The logic of information capital (Counterpoint).

Originally published on GGN newspaper [].

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