Towards an Internet Free of Censorship II Perspectives in Latin America Agustina Del Campo Compiler Facultad de Derecho Centro de Estudios en Libertad de Expresión y Acceso a la Información Towards an Internet Free of Censorship II Perspectives in Latin America Agustina Del Campo COMPILER Facultad de Derecho Centro de Estudios en Libertad de Expresión y Acceso a la Información 1 Contents 5 Foreword Agustina Del Campo 7 Internet Governance Networks at National Level. Experience of recent cases in Latin America Carolina Aguerre 31 Cybersecurity and Human Rights in Latin America Daniel Álvarez Valenzuela y Francisco Vera Hott 57 Net Neutrality, Zero-rating and the Marco Civil Luca Belli 81 Having Your Cake and Eating It Too? Zero-rating, Net Neutrality and International Law Arturo J. Carrillo 151 Europe’s “Right to Be Forgotten” in Latin America Daphne Keller 175 Right to Be Forgotten in Cyberspace? International Principles and Considerations about Latin American Regulations Nelson Remolina Angarita Foreword The development of the internet brings about new opportunities, cha- llenges and problems that require creative solutions, capable of promoting further development, investment, sustainable growth, while fairly and squarely guaranteeing the rights of users. Regulation is among the State sponsored solutions to solving some of the new issues brought about by the development of technology and it must have a pragmatic problem solving approach while respectful of the fundamental rights of people. Over the past two years internet regulation in Latin America has flouris- hed and increased exponentially, diversifying the agendas of our lawmakers, policy makers and judges. One of the persistent challenges that they face is that issues grow increasingly complex as technology continues to develop, mutate and change, rendering long fought policy consensus sometimes obsolete, inadequate, or incomplete. Another important factor affecting internet policy development is the gobal nature of the internet. Since issues are common to the global landscape of the internet, local developments are imbedded in regional and global development processes. India’s debate and regulation on zero rating, for example, affected discussions and debates on the issue worldwide. As other countries “test” different solutions we, the global community, benefit from trial and error experience, witnessing their benefits, challenges and shortcomings. One of the most paradigmatic cases nowadays is Europe’s right to be forgotten, which has spilled over to non- European debates on privacy, data protection and freedom of expression. In the midst of this ever-changing internet and its context, CELE intends to contribute technical inputs to the larger policy debates, studying and cri- tically evaluating comparative experiences, analyzing the impact of certain policies on human rights, and, wherever possible, proposing means or tools to understand and think about regulation in a human rights respectful man- ner. Since 2010 at CELE we have been working on internet regulation and human rights, particularly freedom of expression and Access to information. In 2012 we published our first Towards an Internet Free of Censorship, a Towards an Internet Free of Censorship II compilation of articles written by renowned scholars and practitioners from Latin America and the United States. The objective was to identify the main issues under prospective regulation, offer different approaches towards them and contribute concrete recommendations for public policy in Latin America. This new compilation of articles addresses some of the most salient issues within the Latin American legislative and regulatory agenda towards the internet. These are complex and thorny issues that have generated intense debate among scholars, legislators, practitioners, engineers, companies and users. The first article, authored by Carolina Aguerre, analyzes internet go- vernance and the different local models developed in Latin America to assess their efficiency and impact. The second article, by Daniel Alvarez Valenzuela, offers an introduction to cyber security, highlighting the need to incorporate a human rights perspective towards its development. The third and fourth articles address zero-rating. Luca Belli explains the deep connection between access to the internet and zero rating policies, and Ar- turo Carrillo proposes an analysis of zero rating under the Inter-American system’s three part test: legality, necessity and proportionality. Last but not least, the fifth and sixth articles offer two different approaches to the “right to be forgotten”. Daphne Keller analyzes the European Directive and its (in) application to the Latin American context and Nelson Remolina reviews and criticizes the jurisprudence on the issue from the data protection perspective. The articles compiled gather different views and solutions for complex issues. The overall objective of the publication is precisely to contribute to the understanding of the different aspects and complexities of each issue so as to inform and nurture public debate, identify potential virtues and flaws among the different approaches, and collaborate towards the creation of sound public policies, necessary and proportionate to the needs they address, while respectful of human rights. This book was developed and is being published with the support of the Ford Foundation. CELE wishes to acknowledge and thank all contributing authors, the translators and the team that worked on putting it together. We sincerely hope it contributes towards an improved discussion of internet policy and regulation on these and other related topics. Agustina Del Campo 6 Chapter One Internet Governance Networks at National Level. Experience of Recent Cases in Latin America Carolina Aguerre1 Summary This paper addresses the Internet governance mechanisms emerged in the past years in various countries of Latin America, such as Argentina, Colombia, Costa Rica, Mexico, Uruguay and Venezuela, taking the Brazilian case as the example. The literature on Internet governance is focused on conceptualising the relevance of the national dimension. These new spaces are considered as policy networks in transition towards national governance networks based on which a specific field of action is outlined. The paper addresses national cases, seeking to understand their variations, common aspects and possible consequences of the agreements that define Internet policies. Introduction Up until recently, Internet governance was a marginal topic in most of the political agendas of Latin America. Debates were limited to some spe- cialised government agencies, a group of scholars and a few NGOs. But by 1 Carolina Aguerre is professor of New Technologies at the Department of Social Sciences of the University of San Andrés and researcher at the Centre of Technology and Society (CETYS) of the same institution. She is also researcher at the University of Pennsylvania’s Internet Policy Observatory. She holds a Ph.D. in Social Science from the University of Buenos Aires and a Master’s Degree in Communication, Culture and Society from the Goldsmiths College, University of London. Her research lines are focused on Internet governance policies and development, including the deployment of new critical Internet technologies and infrastructure. She worked as executive director of LACTLD, the Latin American and Caribbean ccTLDs organisation, member of the IGF’s MAG and of the LACIGF’s Programme Committee. This article is an English translation of the Spanish original. 7 Towards an Internet Free of Censorship II mid-2013, Snowden’s revelations about mass surveillance on the Internet drastically changed the debate on the matter. At present, these matters are discussed both in the mass media as well as at some events, such as the Netmundial meeting in Sao Paulo in April 2014, which managed to gather the attention of State secretaries and ministers. It is important to analyse the Netmundial meeting and the role of Brazil, since it is directly related to the purpose of this paper about the development of national mechanisms of Internet governance. This conference would not have been possible in that country without the support and expertise of the Internet Steering Committee (CGI in Spanish) and its multi-stakeholder approach of Internet governance. During 2013, the Brazilian stance as a global leader in Internet governance became an indisputable fact. No other state was able to express in such a compelling manner its discontent towards the ubiquitous surveillance scheme developed by the US National Security Agency (NSA)2, or coordinate a high-level joint action by April 2014 with various players involved in the current setting of Internet governance. The purpose was to address the issue of open and secure Internet that ensures privacy and freedom of expression. The role of Brazil -understood as the Government but also as the various stakeholders, including the civil society, the Academia and the business sector of the country- as one of the leaders of the international debate on Internet governance policies, is neither surpri- sing nor new if we consider not only its geopolitical dimension and several diplomatic strategies (including the “soft power”), but also the country’s own background on Internet policies developed in the last two decades. Brazil’s leadership responds to the country’s approach towards Internet governance in the internal front, based on multiple stakeholders who are part of the CGI, created in