The end of net neutrally in the USA and national discussion in Brazil
The net neutrality principle is one of the most controversial and discussed subjects on a global scale when it comes to global computer network infrastructure and data packet traffic, raising arguments about preserving user freedom of navigation, the defense of competition, as well as stimulating innovation and balancing the interests involved both in the business sector and in society.
It is important to highlight that all information transmitted on the Internet travels in the form of a data packet, each of which is equivalent to that part of the information that is broken down into small blocks when sent to the recipient and travels separately to the final destination, where all data packets will be received and the information reconstructed, be it in texts, sounds, videos or images format for display to the receiver. Many authors, metaphorically, illustrate the operation of the Internet using a city where the trucks represent the data packets traveling to the destination by different directions and the traffic authorities represent the routers responsible for guiding the drivers of the vehicles at each stop on what is the best way to the destination.
In short, the net neutrality aims to ensure the traffic of data packets is occurring in an isonomic way, preventing the discriminatory control of content between the network's points (source and destination) by service providers that technically have such a capability. Following the traffic metaphor, service providers would act in these cases as transit authorities that could block or delay the passage of vehicles based on the type, source or destination of the payload transported. In this context, the principle of network neutrality is intended to guarantee the user the freedom to navigate the network without the interference of the access provider in order to prevent the blocking or prioritization of certain data traffic, as well as that the communication operators sell packets of fractioned internet.
American legislation has banned such data discrimination since 2015, when then-President Barack Obama, included as a rule the Communications Act created in 1934, the classification of broadband as a public utility, equating the Internet with electricity and telephone fixed and preventing the degradation of online traffic of services by telecommunications companies and other abusive practices. However, along a lot of discussions and controversies, the United States Telecom Agency on Thursday reviewed such rules, revoking the guarantee of net neutrality, which for defenders of such measure will allow creation of new forms of business by the internet operators and consequently the expansion of investments in infrastructure that demand the large amount of data created by users today.
In Brazil, the principle of net neutrality is guaranteed by the Brazilian Civil Rights Framework for the Internet (Law No. 12,965 of 2014) in its article 3, section IV and article 9 and regulated by Decree no. 8771 of 2016. However, despite the various discussions at the time of the Civil Internet project, the Brazilian telecommunications companies already intend to resume the issue, aiming at a more flexible net neutrality and the US decision may open precedents in this regard, collaborating with the recent discussions of the limitation of the fixed Internet in Brazil, which for some critics is contrary to the principle of net neutrality adopted by our legal system, since the limitation by data traffic represents in practice the limitation of consumption of audios and videos, for example.
A Folha de S. Paulo report published earlier this year already mentioned that internet operators in Brazil were only waiting for a decision by the US telecommunications agency to pressure President Michel Temer to amend Decree no. 8771 of 2016, which has introduced stricter rules for the principle of network neutrality defined by the Internet Civil Code, establishing among other rules that "commercial offers and charging models for internet access should preserve a single internet, open in nature , plural and diverse, understood as a mean for the promotion of human, economic, social and cultural development, contributing to the construction of an inclusive and non-discriminatory society. "
As one of the motivating arguments for the decision of the US telecommunications agency, internet operators in Brazil argue that even more demand will be imposed on the network with the emerging of new technologies such as Internet of Things and Virtual Reality, which will require investments in infrastructure and priority treatment in cases such as surgeries carried out via the Internet, arguing that rigid rules of net neutrality prevent the generation of revenues and, consequently, new investments that allow a technical evolution of the infrastructure to meet the increasing demand of data usage.
However, it is important to highlight and raise the discussion that the rules of the Brazilian legal system do not interfere in the possibility of the internet operators to offer users different types of access, setting different prices depending on the greater or lesser "transmission speed". There is no legal impediment for access providers to seek remuneration commensurate with the service offered to the user, fostering free competition, without, however, using tricks that could in any way harm the consumer such as discrimination or degradation of traffic.
On the other hand, network neutrality is fundamental on defending competition and stimulating the innovation of services available online. Although the business models currently in place by internet providers operating according to the Brazilian Civil Rights Framework for the Internet do not prevent the free competition, they can still be instruments for cartelization and undoubtedly undermine competition between online services by allowing content discrimination or fractional commercialization of services, as well as representing a genuine affront to the guarantee of the preservation of freedom user navigation and the development of an inclusive society.
Therefore, without the pretension of the exhaustion of all post-and contrastive arguments to the principle of net neutrality, and to bring the discussion to the current context of the Brazilian scenario in the face of the dangerous North American precedent and the discussions of Internet operators, we must point out that although the principle of net neutrality is definitively integrated into the Brazilian legal system, it is controversial at the global level and at any moment it can be raised again by our legislators with the bias of easing this important principle carved by the Brazilian Civil Rights Framework for the Internet.
About the authors:
Andressa Garcia is a lawyer specializing in Digital Law and Compliance. Enthusiast in the area of Data Protection and Privacy.
Fabíola Garcia is a network engineer graduated in Computer Engineering from the Metrocamp Ibmec University.