The National Congress of Brazil is poised to vote Wednesday on deeply troubling “fake news” legislation, drafts of which include traceability for encrypted chat programs and obligations for digital companies that could compel them to remove protected speech. PEN America said today that proposed law could be disastrous for free expression and privacy online.
“This legislation is bad news for democracy and for free expression in Brazil,” said Matt Bailey, PEN America’s digital freedom program director. “In theory, this law is meant to address Brazil’s very real disinformation problem. In practice, it would put a target on the backs of dissidents and activists. It would destroy the ability of individuals to express themselves online without the fear of surveillance and reprisal in a country where democracy has already been knocked back on its heels. There is no free speech in the panopticon.”
While the proposed legislation is still being amended and finalized, based on a previous draft it appears likely to include several problematic provisions. Drafts have included “traceability” provisions that would require online platforms, including currently anonymous ones like Signal and WhatsApp, to maintain data for every communication linking it back to the real world identity of the sender, and to provide that information to the government on demand. It is not clear that a warrant would always be required. The previous draft of the legislation also included broad restrictions on “inauthentic accounts” and “unidentified automated accounts.” such as bots, which can have legitimate purposes as well as harmful ones. Further, it would create new obligations for companies to proactively remove such content, delegating oversight to the companies and potentially creating incentives for them to over-moderate to ensure compliance with the law.
“Setting these requirements down in law risks forcing companies’ hands to aggressively police speech on their platforms that should be protected—and private,” said PEN America’s Bailey. “And while this legislation and the way it is being rushed out the door would be troubling in any country, it is especially alarming given the demonstrated willingness of the Bolsonaro administration to punish critics and harass and intimidate marginalized communities.”
PEN America stands in solidarity with Brazilian civil society, including the Brazil Online Rights Coalition (Coalizão por Direitos na Rede), in expressing deep concern about this proposed legislation and calling on Brazilian legislators to ensure any such proposals preserve free expression rights and are subject to public scrutiny.