Guest post by Veronica Arroyo and Javier Pallero

Good news: the Brazilian Congress is considering a bill to ban the practice of capping data for home broadband internet in Brazil. This bill would put an end to artificial limits for the amount of data people can consume. It would guarantee proper access to the internet, foster innovation, and expand internet users’ ability to enjoy fundamental rights online.

Here’s a look at what’s happened so far, why this bill matters for digital rights, and what you can do to support its passage into law.

How we got here: Data caps introduced in Brazil

About a year ago, internet service providers (ISPs) in Brazil began to implement data caps for home broadband connections. This means that people are not only charged for the speed of the internet connection they’re paying for, they are also limited in the amount of data they can consume per month. Once a data cap (limit) is reached, companies can reduce the connection speed to a minimum or even disconnect you from the internet. This is the business model that mobile operators have used for years in Brazil as well as in other parts of the world. The new pricing scheme got initial support from public officials and became policy in April 2016, when ANATEL — the Brazilian national telecommunications agency — suspended the implementation of data caps for three months, but then allowed them after that time, given certain conditions.

As a consequence, consumer groups and digital rights organizations expressed concerns regarding the implications of data caps for freedom of expression and access to the internet. This prompted the Senate to evaluate the issue and call researchers for testimony. Researchers found that a full 99% of the 608, 470 participants in a survey did not want data caps for broadband internet. That finding motivated Senator Ricardo Ferraço to propose a bill to ban data caps for home broadband connections. The Senate passed that bill in March 2017, and it was sent to the House of Representatives for its evaluation. In the meantime, after strong pressure from IDEC and the Committee of Defense of Users, ANATEL developed a public consultation to gauge acceptance of the new data capping scheme. A stunning number of people participated; by the end of the first day, more than 6 000 people had weighed in. Notably, most of them did not approve of data caps.

On June 13, after public hearings, the Consumer Protection Commission in the House of Representatives approved the bill. This is a huge victory for civil society activists and the public, who made their voices heard on this critical issue. Now it’s time for the Science and Technology and Constitutional Affairs Commissions to evaluate the bill. If they approve the legislation without changes, it will pass to a plenary vote in the House.

Why we need a bill to stop data caps and protect broadband

In order to understand the need for this legislation, let’s first take a closer look at what data caps mean. In the simplest terms, “data caps are monthly limits on the amount of data you can use over your internet connection.” Typically, you contract for an amount of data that you can consume; and if you hit your limit, most of the time you will need to buy another pack of data. Or alternatively, your ISP will charge you more money for the extra consumption, or slow down the speed of your data consumption. Bear in mind that data “consumption” includes uploads as well as downloads.

It works differently with no data capping scheme to interfere. An ISP will charge you the same regardless of how much data you consume. The ISP offers its services according to the speed of the navigation, which is closely related to the type of broadband you’re using. In that case, if you want more speed, you will pay more.

With a data capping scheme, though, it doesn’t matter what speed you’re paying for. You may pay “X” for one hour of internet,  but with data caps, if you watched videos or uploaded files, you end up paying more for that same hour.

As you can see, data caps can easily create limits and problems, making it more expensive to use the internet or create businesses that depend on it. That is why this bill, now renamed “Projeto de Lei nº 7.182, de 2017”, aims to ban these schemes by adding the following right to the Marco Civil da Internet:

Article 7  .-  (…)

“The non-implementation of data caps consumption in broadband Internet plans”

This amendment would guarantee that everyone in Brazil could navigate the internet without arbitrary data consumption limitations. Below, we explain why this new provision is important for your rights.

How a broadband cap risks your rights

The Latin American context

Even though access to broadband internet in Brazil doubled from 2010 to 2015, to date, only half of the Brazilian houses have access to internet. Moreover, most of those houses are in urban areas. By 2014, there was a gap in Brazil between rural and urban areas of 36 p.p., one of the biggest gaps Latin America. These numbers provide a clear overview of the current situation in the country. The market for broadband internet in Brazil, as in many Latin American countries, is still developing. There is much more work to do to bring the whole population online.

Furthermore, in Brazil most of broadband internet is provided by three big companies. This creates an oligopoly, which makes it easier for these businesses to impose rate hikes and charge for data consumption, regardless of whether it benefits people or innovation in Brazil. In short, data caps are an easy way for these companies to enrich themselves, without a benefit for anyone else.

The impact of data caps on internet use and production of content

As we have explained, with a data cap scheme, if you hit the contracted limit for data, you no longer have access to the internet. This is a new situation for people who are used to having unlimited access to the internet. Implementing data caps will discourage the use of the internet and exploration of new features, apps, services, etc., including discouraging people from accessing new media outlets or educational resources such as online courses. Additionally, it will discourage the production of content, especially audio-visual content. According to T-Mobile data, people with capped broadband use less broadband than those who are not artificially limited. If the goal is to bring more people online and cultivate new businesses, the worst-case scenario is to set up a situation where arbitrary limits keep us from discovering — or creating — new features or content on the internet.

How data caps put rights at risk in Brazil

The internet has become a critical tool for our daily activities. The Marco Civil da Internet further declares that access to the internet is essential for the exercise of citizenship. Besides that, this law points out that the guarantee of freedom of expression in communications is a condition for the full exercise of the right to access the internet.

We can see that implementing data caps puts these rights at risk. Senator  Ricardo Ferraço has underscored that many aspects of the citizenship depend upon access to the internet. Today the people of Brazil benefit from using the internet in many areas of life, including in electronic judicial procedures, e-learning, online tax declaration, and e-social web portals, among others. With a data cap scheme, you could see your navigation limited in the middle of a tax declaration, even if you’ve already paid for internet access.

Other rights that a data cap can harm are related to access to information. Access to information is a part of the freedom of expression, and we can see the harm when users attempt to access streaming of a media outlet or a public hearing, or upload rich content in a public proceeding, and that process is stopped due to limits on data.

Consider as well the rights to freedom of enterprise and freedom of association. Startup businesses and grassroots organizations alike would be limited in the amount of data they can produce and upload. The public as well would face limitations when experimenting with new apps and services or accessing multimedia campaigns. Therefore, legislators must carefully consider the economic and social impacts of data caps.

What about network congestion?

One of the arguments proponents of data caps advance is that they help with network congestion. Some ISPs in Brazil have argued that the data cap scheme will allow them to manage the network better. That is an important issue, so a central part of the public hearings focused on this technical problem. Analysis and testimonials from experts concluded, however, that network congestion is not an issue in Brazil. If it were to become an issue, the best way to improve quality access to the internet would be to invest in traffic exchange points, content delivery networks, and other technical improvements to the infrastructure — not to charge people more money for worse internet service.

This article was originally published on Access Now

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