Net Neutrality in Brazil

What is Net Neutrality?

Network neutrality is a principle of network architecture obliging ISPs to treat data packets that flow through their networks in an isonomic manner, under no discrimination due to content, origin, destination or application type. Early ideas over the matter emerged in the 2000s, a period in which broadband expansion and the advent of new generations of mobile Internet increased the number of connected devices at a lot faster pace when compared to the physical expansion of telecommunication networks (e.g. VoIP applications competing with traditional telephony services), with evidences that ISPS were throttling traffic from applications that could be detrimental to their business interests.

There are at least three manners to discriminate some specific content or application over the Internet: blocking, throttiling, or charging a different price for access.

Blocking

Not only does content blocking occur in the private sector, but also in countries with strict Internet censorship, at the initiative of governments either directly or indirectly under the control of the State, such as China. such as China.

Throttling

Speed reduction occurs when a particular application is not loaded at the speed of other applications. This is due to several reasons: to decrease the quality of a service competing with traditional telephony services (e.g Skype and WhatsApp); to facilitate users' access to a competing service; to reduce bandwidth consumption in heavy applications (such as youtube); or even to prevent access to services which may violate intellectual property rights (Bittorrent). Although there are several reported cases worldwide of this type of discrimination, many of them may be hidden, hence, increasing the difficulty a user has in identifying patterns of discrimination.

Price Discrimination

Finally, ISPs can also discriminate through different prices for their service or application. This differentiation may come from charging any additional fees for access to certain content, as with cable TV. Also, ISPs can provide free access to some applications specifically chosen by providers, which that can hamper competition between similar applications.

Why is Network Neutrality Important?

The main purpose of the net neutrality principle is to preserve the open architecture of the Internet.

Control in communication networks can be divided into closed architectures, in which there is a (core-centred architecture) and open architectures without such central core, i.e. (end-to-end architecture).

Closed Architectures

The more core-centred an architecture, the lower the level of autonomy of the actors located at the ends of the network.. Their decisions and capacities will be essentially limited according to the decisions of a limited number of actors. An extreme model of core-centred communication is traditional television - even though users have the choice of changing channels, the communication flow is fundamentally unidirectional, and decisions about content availability are restricted to the interests of those who manage the channels. In this model, innovation is guided according to the interests and motivations of the core operators, who will have control over the rate and type of innovation they wish by blocking and restricting adherence of new technologies to their networks and ultimately opting for those technologies that will be winning in detriment of those that will not even be participants in the network.

Open Architectures

An end-to-end architecture is quite different from such scenario in terms of user autonomy. When we think of primitive communication systems, without any central control, there are many more possibilities for interaction between the agents that are at the ends of the network. We can say that the most primitive system of end-to-end communication is a city square: where one can talk to any other people, and do things as we please, whenever we wish to, observing the rules established in that community (e.g. not offending others, not causing damage to public assets). Thus, in an end-to-end, architecture, decisions are fundamentally guided by new entrants, which certainly brings greater diversity of technologies and uncertaintie about which will succeed.

So, Internet is like a city square?

Internet resembles topen public areas a city rather than a television system. However, the main difference between the Internet and a downtown area lies in technology tools that the Internet makes available to its participants: chat applications to communicate with people in other countries; video sites that allow you to watch content from other cultures; platforms for the user to create and provide their content and applications; social networks that allow the organization of protests and the expression of political opinions. This autonomy, coupled with the technology tools available, is perhaps the main factor for the Internet to be considered as one of the main instruments for theexercise of substantive freedom and the expansion of individual capacities. Without an open network, collaborative initiatives, such as Wikipedia could never have come about. Instant memes and celebrities, an essential product of our modern culture, are today an expression of plurilateral creativity that defies passive patterns in the consumption of culture. In the field of the arts, the Internet enables individuals to publicize their work (and profit from such) without obeying the standards and hierarchies of the traditional industry - without an end-to-end architectural standard, many YouTube channels or New Zealand singer Lorde (who became notorious from sharing in social network Spotify) would never exist.

Who wins
and who loses
with net neutrality?

How is net neutrality regulated in the world?

Currently, more than 20 countries already have net neutrality regulations. The first country in the world to develop a law in such regard was Chile in 2010. After some isolated initiatives in several countries, Europe consolidated its directive on the subject in 2016. South America is one of the leading regions with the majority of countries having national laws for the matter.

In the US, the debate is quite controversial: the first regulations date back to 2010, which were overturned by a court ruling in 2014. By 2015, the telecommunications authority issued a new rule, which was overturned by the Trump administration in 2017.

Incorporated Map of site This is Net Neutrality | https://www.thisisnetneutrality.org/

Fonte: Site This is Net Neutrality
https://www.thisisnetneutrality.org/

How Net
Neutrality
works in Brazil?

Net neutrality is provided for under art. 9 of the Marco Civil of Internet, regulated in 2016 by means of a decree. According to the Brazilian law, ISPs have the obligation to treat any data packet, regardless of its content, source and destination, service, terminal or application, isonomically. Differences based on agnostic criteria, such as speed and contracted bandwidth, are allowed. Discriminations based on specific criteria such as content, origin and destination, service, terminal or application should only be derived from:

Essential technical requirements, such as the prioritization of packages according to their sensitivity to their latency, in order to preserve the quality of user experience; or the prioritization according to user's choices; or the adoption of discrimination for the purpose of preserving network security, such as blocking malicious software, spam or DDoS attacks.
Emergency services, such as VoIP calls, geolocation services and equivalent messages or substitutes for public emergency services (e.g. police, fire, hospital); and official or priority messages in situations of public calamity or risk to the national security.

In discrimination by technical requirements and discrimination in emergency services the following rules of interpretation must be observed in order to assess the legitimacy of an activity:

should not cause any damage to users with a legitimate use of the network;

should be adequate, necessary and proportinal to their provided-for objective;

must be isonomic, without privileges to specific applications;

Users must be informed in a simple, clear and sufficient manner about the practice adopted, about the need for such practice and its impact on the quality of user's experience;

The adoption of such activity must be offered to user under a non-discriminatory commercial condition.

In all cases, the effects cannot produce anti-competition effects, such as about from a domineering position and other economic infringements.

Questions and Answers on Net
Neutrality in Brazil

How does net neutrality approved in the Civil Code prevent innovation and the development of new businesses in the telecommunication sector?

The Civil Code does not prevent new traffic control and management techniques and procedures from being developed. Content Delivery Networks, the development of proprietary infrastructure by application providers and other traffic optimization technologies are allowed and promoted. As regards network neutrality, the Civil Code prohibits these new technologies, if operated by connection providers to allow access to the public Internet, to discriminate between data packages based on specific criteria such as content or origin. Technologies that direct agnostic treatment between applications or that are aligned with necessary packet prioritization or network security requirements are not prohibited.

Does the Civil Code prohibit sponsored or subsidized access plans for specific applications, such as zero-rating?

The matter is not peaceful in the Brazilian doctrine. On the one hand, some understand that the obligations of isonomic treatment cover only discriminations at the logical and infrastructure levels, and the only form of zero-rating prohibited by the Brazilian law is when an application of the access provider, or its economic group, is offered at no cost. In addition, there are social benefits involved with the adoption of zero-rating practices, which should be weighed upon the interpretation of net neutrality.

If the interpretation is adopted that the obligation of isonomic treatment provided for in art. 9 covers not only discrimination at the logical and infrastructure level, but also at the level of commercial offers, zero-rating plans would be violating the obligation set forth in art. 9, even if the partnership is not for profit. For this train of thought, zero-rating plans could be offered for applications that replace or are equivalent to emergency services, and also whenever an operator offers zero-rating plans to application providers through isonomic and non-discriminatory trading conditions, with the possibility that these pay for the traffic generated by their users (model 0800).

Should a broadband user exceed the contracted franchise and their connection interrupted or reduced, is this practice a violation of net neutrality?

No. Network neutrality does not impose restrictions on the collection of data by volume or speed, provided that it is given under agnostic criteria to all applications and under isonomic conditions to all users.

Does the net neutrality rule provided in the Civil Code prohibit ISPs from performing traffic management on their networks?

No. The Civil Code acknowledges that there may be technical requirements for access providers to better manage their networks, and thus comply with the contractual Quality of Service levels required by Anatel. These practices may include prioritizing applications that are more sensitive to latency and blocking applications which pose a threat to network security, for instance.

Does the Marco Civil allow users to contract specialized plans for exclusive access to only a specific application or service, at levels of quality higher than those granted in general Internet access plans?

In the event an ISP provides a particular audiovisual application or service by means of a logical structure and/or structurally separated from the public Internet and by the contracting of a specific plan (the so-called specialized services), the provider may provide this service with levels of access to the public Internet, but must also comply with the rules set forth by Anatel for the Conditional Access Service (SeAC).

Based on the Marco Civil, can ISPs provide users with some type of access plan that allows them to choose which data packets they wish to discriminate?

The Marco Civil does not prevent users from customizing their home and commercial networks, with the purpose of guaranteeing the prioritization of packages of a certain type, even if there is no congestion or latency in the network. However, this customization cannot exempt an access provider from complying with the rules of non-discrimination of packages and Quality of Service set forth by Anatel for users who contract generic access plans.

Does the Marco Civil prohibit the user of a terminal or a local network from discriminating data packets based on specific criteria?

No. The prohibition of differential treatment provided for in the Marco Civil affects ISPs involved in the provision of Internet access service for users, not intranets, extranets or home and business networks, even if it allows access by third parties. So if a bus company provides its users with free wi-fi, it may limit access to certain applications or content. The same applies to users who wish to limit access in their home networks to specific content (such as parental control).

How should Telemedicine be treated?

Telemedicine is not an emergency service, unless when directly linked to the care of some medical emergency. In order to guarantee higher levels of Quality of Service and stability, companies providing telemedicine services could contract along with access providers specific traffic prioritization plans or even specialized services.

Does the Marco Civil prevent direct connections between application providers and access providers, as in the case of Netflix?

No. The Marco Civil does not deal with interconnection rules or direct connection between application and access providers, with ample freedom to contract in these cases, subject to the Anatel rules. However, if a particular access provider degrades the traffic of a specific application when originated from an interconnection (in order to promote the contracting of a direct connection), this provider would be violating the Marco Civil and the Anatel interconnection regulation.

Does Marco Civil prevent access blocking?

Marco Civil does not prevent access blocking, unless under network security reasons. The blocking of ports, on the other hand, at the initiative of connection providers and not based on technical requirements, is prohibited under Marco Civil.

Recommended Bibliography

AUTHOR'S PUBLICATIONS

BOOKS AND THESES

Net Neutrality
Book, Ed. IASP, 2018

Arquitetura da Rede e Regulação: a Neutralidade da Rede no Brasil
Fundação Getúlio Vargas, 2015

Papers

Da Teoria à Prática: a fiscalização e Aplicação da Neutralidade da Rede no Brasil,
in Horizonte presente: Debates de tecnologia e sociedade, Ed. Letramento, 2018 (com Andressa Bizutti, in press).

The Connectivity Dilemma and the White Man’s Burden: Evaluating the role of private market in the expansion of Internet access, Conference paper, Cornell Law School's Annual Inter-University Graduate Conf., 2016 (com Isabel Cortellini)

O Marco Civil e a Importância da Neutralidade da Rede: evidências empíricas no Brasil, in Direito & Internet III: Marco Civil da Internet, Ed. Quartier Latin, 2015

Neutralidade Da Rede e o Marco Civil da Internet: um guia para Interpretação, in Marco Civil da Internet, Editora Atlas, 2015

Zero Rating: uma introdução ao debate, in poliTICs, Instituto Nupef, 2015.

Towards a Developmental Framework for Net Neutrality: The Rise of Sponsored Data Plans in Developing Countries, Conference Paper, TPRC - Research Conference on Communications, Information, and Internet Policy, 2014

Uma questão de escolhas: o debate sobre a neutralidade da rede no Brasil, working paper, CONPEDI, 2013.

CONTRIBUTIONS IN PUBLIC CONSULTATIONS

Resposta à Consulta Pública promovida pelo Ministério da Justiça em fevereiro de 2015. Resposta à Consulta Pública promovida pelo Ministério da Justiça em feveiro de 2016. Contribuição do Núcleo de Direito, Internet e Sociedade da USP ao debate sobre neutralidade da rede.

Contribuição do Núcleo de Direito, Internet e Sociedade da USP ao debate sobre neutralidade da rede.

MEDIA PUBLICATIONS (SELECTED)

fim da Neutralidade nos EUA pode representar virada global (El País, 2017)

Perspectivas sobre o IGF 2015: Que tipo de internet queremos? (Brasil Post, 2015)

One Vision of a Neutral Internet (Wall Street Journal, 2014);

Neutralidade da Rede e Inclusão Social (Estado de SP, 2014)

Other Authors