FGV and ISOC Brasil analyze “Fake News Bill” from perspective of digital sovereignty

On May 16, the Center for Education and Research in Innovation (CEPI) at Fundação Getulio Vargas’ Sao Paulo Law School and the Brazilian chapter of the Internet Society (ISOC Brasil) launched a report titled “Internet Impact Brief – Proposals to Regulate Digital Platforms in Brazil,” which evaluates sensitive points found in Bill 2,630 of 2020 (dubbed the “Fake News Bill”). This instrument, currently being debated in the House of Representatives, could put some characteristics of digital sovereignty at risk. 

The document analyzes the bill’s potential impact on critical properties and other fundamental elements of the Internet Way of Networking (IWN), including enablers, from the perspective of digital sovereignty. 

The report critically assesses various articles that still need to be debated in order to guarantee protection for some characteristic elements of enablers, meaning parties responsible for the functioning of an open, globally connected, secure and reliable internet.

Five points were raised that still need to be thoroughly evaluated: 

1. Management and governance 

Ensuring digital sovereignty through the operation of an open internet involves the state’s ability to enforce its own rules, and regulation is a key method for countries to exercise this sovereignty.

Regarding this point, according to the report, Bill 2,630 of 2020 still lacks a definition of an institutional structure to carry out regulation. This causes legal uncertainty, as there are several provisions in the bill that will depend on subsequent regulation, and this could lead to an increase in litigation. In addition, this lack of definition also raises concerns about the preservation of the multisector governance model and the technical competence of the body that will take on this role. 

2. Unrestricted reach 

Bill 2,630 of 2020 could have an impact on unrestricted accessibility, which is essential for achieving the goal of a globally connected internet, in terms of two possible developments involving the concept of digital sovereignty: (i) the state’s power to enforce its laws; and (ii) the issue of sovereignty related to jurisdiction. Both aspects concern the notion of digital sovereignty from the state’s point of view. 

3. Confidentiality of data, information, devices and applications 

With regard to the dimension of confidentiality (an essential requirement for a secure internet), it is possible to identify that Bill 2,630 of 2020 could have an impact on three aspects of digital sovereignty: (i) the issue of national security; (ii) the state’s ability to enforce its own laws, which is directly related to the issue of jurisdiction; and (iii) the right to self-determination of user data (a sphere of digital sovereignty focused on the individual). It is extremely important to consider item (iii), which to some extent competes with items (i) and (ii), focused on digital sovereignty related to the interests of the state, while the third item prioritizes the protection of citizens’ rights. 

4. Responsibility 

With regard to the dimension of confidentiality (an essential requirement for a secure internet), it is possible to identify that Bill 2,630 of 2020 could have an impact on three aspects of digital sovereignty: (i) the issue of national security; (ii) the state’s ability to enforce its own laws, which is directly related to the issue of jurisdiction; and (iii) the right to self-determination of user data (a sphere of digital sovereignty focused on the individual). It is extremely important to consider item (iii), which to some extent competes with items (i) and (ii), focused on digital sovereignty related to the interests of the state, while the third item prioritizes the protection of citizens’ rights. 

5. Privacy 

In terms of privacy, which underpins a reliable internet, three developments of the concept of digital sovereignty can be identified that affect discussions: (i) exercise of the power of jurisdiction; (ii) informational sovereignty; and (iii) self-determination of data. It should be noted that item (i) focuses on the notion of sovereignty related to the state, while (ii) and (iii) prioritize the sphere of users’ interests.