INTRODUCTION
In March 2015, I was in an office building on São Paulo’s tech-heavy Avenida Berrini attending a two-day conference about Internet civil rights, net neutrality, and online privacy. Hundreds of attendees at the Seminário Marco Civil da Internet (Civil Rights Framework of the Internet seminar), from government officials to lawyers, academics, and tech entrepreneurs filled the conference hall eager to discuss Brazil’s new “Internet Bill of Rights,” the Marco Civil da Internet (Civil Rights Framework of the Internet or MCI). During a panel on net neutrality, one of the panelists, a researcher from InternetLab,Footnote 1 asked the following question: “Is Facebook the Internet?” Rhetorical or not, the question’s implication that the global social media behemoth was the equivalent of the entire World Wide Web was thought provoking. In elaborating on this provocative query, the panelist specifically referenced developing markets such as Brazil, India, and certain parts of Africa, where Facebook was offering (or attempting to offer) free, limited Internet access to those portions of the population that lacked such access.
Facebook is the dominant social media platform across the globe with over two billion active users (Bergstein Reference Bergstein2017). Additionally, as of April 2012, it wholly owned Instagram, a photo-sharing application with seven hundred million active users (Upbin Reference Upbin2012), and in February 2014 it acquired WhatsApp, a text-messaging application with 1.2 billion active users (Covert Reference Covert2014). The panelist’s question, however, was not meant to address the dominance of Facebook in the global social media landscape. Instead, it was used to introduce a debate about Internet openness and net neutrality––the philosophy that Internet service providers (ISPs) should not prioritize one form of Web traffic over another––in Brazil. Such debates over technology engage not only questions of openness and innovation in information and communication technologies (ICTs) but, as I show in this article, questions about the nature of democracy in Brazil and in a broader, global context.
Controversy regarding Facebook and its alleged subversion of net neutrality began in 2013 when the social media behemoth launched Internet.org, a platform intended to provide free, “basic” Internet access to poor populations in developing countries that are unable to afford the Internet. The free access offered was limited solely to Facebook’s partner websites and applications. Without access to the broader World Wide Web, users of Internet.org essentially experience a “walled” Internet whose content is determined solely by Facebook. Because Internet.org discriminates against Internet companies that are not affiliated with the promotion, it received harsh criticism by critics who feel that the Internet should be an open platform for all users, which is a foundational principle of the Internet and a core feature of Brazil’s MCI. After being rebranded as “Free Basics” in September 2015, the promotion was banned in IndiaFootnote 2 and is under similar threat in Brazil and other developing markets. Since Facebook (and its partners) literally becomes the Internet for users of this platform, asking whether Facebook is the Internet invites us to consider conflicts between the proprietary interests of transnational tech companies and the public’s interest in a free and open Internet, not only in Brazil but throughout today’s highly connected, digital world.
Between 2012 and 2015, I conducted eighteen months of ethnographic fieldwork in Rio de Janeiro and São Paulo, Brazil. This fieldwork allows me to explore open Internet governance in Brazil in both the cultural and regulatory realm. I provide an ethnographic account of Brazil’s cultura livre (free culture)––a movement recognized both in Brazil and globally in which computer programmers seek to supply free or open-sourced access to intellectual property (IP) and other forms of cultural production (Shaver 2010; Lippman Reference Lippman2014). From a regulatory perspective, I examine the contrast between the MCI’s net neutrality protections and “zero-rating” strategies––mobile phone promotions, often sponsored by Facebook, that provide free mobile data to low-income subscribers. Net neutrality aims to promote a free and open Internet, while zero-rating practices provide limited Internet access via closed measures that are intended to control or block the content users may retrieve. The values of the MCI and cultura livre show a recent embrace of open ideals in Brazilian governance and culture. Yet, socioeconomic inequality in Brazil creates customers willing to accept the limited Internet access offered via zero-rating strategies that advance more proprietary models of online closure. Because Brazil is one of the few countries in the world to enact comprehensive legislation that advances open Internet governance, it is an ideal locale to investigate these contradictions.
To unpack this experience in Brazilian Internet governance, I draw from Christopher Kelty’s (Reference Kelty2005) theory of openness as an ideology meant to promote the free circulation of ideas. I argue that the dichotomy between local, open values in online governance and those more restricted, proprietary goals of the global tech community creates a schism in transnational discourses of Internet governance. This case study on the struggle for open Internet ideals in Brazil offers insights into similar debates about Internet governance occurring elsewhere around the world.
OPENNESS
In the 1960s, computers and computer-mediated communication loomed as “technologies of dehumanization, centralized bureaucracy and the rationalization of social life and, ultimately, the Vietnam War” (Turner Reference Turner2006, 2). With the dawn of the Internet in the 1990s, computers and digital technology transcended this Cold-War narrative by emerging as symbols of transformation that offered the possibility of a utopian digital society that was decentralized, egalitarian, free and open (Turner Reference Turner2006). One reason for this utopic optimism is the traditional values of the Internet, which also underlie the principles of openness. These values, which include individual user freedom, freedom of information access, and promoting competition, are embedded in the Internet’s architecture and aim to create a level playing field for new information products and technological innovation (DeNardis Reference DeNardis2014). Since the dawn of the digital era, scholars have continued to theorize the Internet as a free and open network (Lessig Reference Lessig1999; Wu Reference Wu2003; Kelty Reference Kelty2005; DeNardis Reference DeNardis2014; Sylvain Reference Sylvain2016; Belli and De Filippi Reference Belli and De Filippi2016; Golub Reference Golub2017).
But just what is meant by “openness?” In his insightful study on technocratic “geek” culture, anthropologist Christopher Kelty (Reference Kelty2005) posits that openness has two aspects: ideological and legal/technical. Ideologically, openness represents the liberal views of those software engineers, computer programmers, and entrepreneurs who are “intimately involved with the programming and design of [the Internet’s] technical infrastructures” (Reference Kelty2005, 185). From a technical standpoint, Kelty claims that openness indexes the legal structure of the Web itself. This legal/technical structure consists of the Internet’s core protocols (i.e., laws or rules) and architecture that “give[] the Internet its present order [and] how it should be ordered in the future” (Reference Kelty2005, 186). The dual characteristics of openness inform tech parlance relevant to governance of the Internet.
Recent scholarship has examined openness through both its ideological and technical lenses. For instance, in her informative study on computer hackers, Gabriella Coleman (Reference Coleman2013) examines the ideological side of the openness duality. Coleman shows how hackers have transformed key liberal ideals such as access, free speech, transparency, and meritocracy by arguing that hackers see IP as a restriction that must be counteracted through alternative legal agreements that treat the knowledge, inventions, and expressions that constitute IP not as property but as speech that may be freely shared, circulated, and modified. Meanwhile, Lawrence Lessig (Reference Lessig2004) suggests that the legal/technical side of the openness duality is a battle of “piracy” versus “property.” According to Lessig, because of the fear that open or “free” culture facilitates piracy, such free culture is generally not supported by the “established content industries” (Reference Vaidhyanathan2004, 9). Similarly, media studies scholar Siva Vaidhyanathan (Reference Vaidhyanathan2004), who studies the digital revolution and how it has amplified the sociopolitical trends of globalization, notes that openness creates a legal tension, which is a division between “anarchy” and “oligarchy”––with the anarchists being those who support open digital platforms and the oligarchs being those who do not.
Together, the dual aspects of openness symbolize the technical infrastructure and ideology traditionally associated with the Internet’s utopic optimism narrative (Turner Reference Turner2006). Openness, which also aims to create a level online playing field for sharing information and technological innovation, is the underlying value of this narrative and is embedded into the Internet’s architecture (DeNardis Reference DeNardis2014). In Brazil, openness expresses itself as cultura livre.
Cultura Livre
Since its inception, the Internet has helped facilitate the transmission of music, motion pictures, art, photographs, cultural property, and other creative works, which are often freely linked, built upon, and shared. This foundational commitment to openness frequently conflicts with conventional IP laws. The qualities of openness, decentralization, and neutrality, which index the traditional values of the Internet, resonate with what digital activists in Brazil term cultura livre (free culture). According to Brazilian legal scholars Pedro Mizukami and Ronaldo Lemos, cultura livre is “a loosely organized movement that seeks to apply free software strategies to the broader realm of cultural production” (Reference Mizukami, Lemos and Shaver2010, 31). As this definition suggests, free culture stems from the concept of free software with the term “free” referring to freedom, rather than the lack of any monetary value. Defenders of free culture demand attention to the impact of IP laws on technological innovation, access to knowledge, education, and free speech, while also stressing alternatives to the IP status quo and promoting open access in the digital realm (Mizukami and Lemos Reference Mizukami, Lemos and Shaver2010).
A tangible example of cultura livre is found in Brazil’s tecnobrega phenomena. Hailing from the state of Pará, in Brazil’s northeastern region, tecnobrega, or “cheesy techno,” is an electronic music genre that involves sampling and remixing US popular music with original music from Brazilian producers. The sampled recordings that fuel tecnobrega are used without the permission of their owners and often in violation of applicable copyright laws (Omari Reference Omari2010). Yet, while legally suspect, tecnobrega represents an example of “open business”––a business model that generates revenue with flexible or little IP protection (Mizukami and Lemos Reference Mizukami, Lemos and Shaver2010, 31). Although its sound may be “cheesy,” large informal economies have emerged around tecnobrega’s nonconventional distribution methods, which feature street vendors who produce and distribute CDs at minimal prices. These CDs are then used as advertisements for well-attended street parties through which both the vendors and producers reap profits from entrance fees and CD sales. In places like Belem, tecnobrega is an economic force “employing thousands of people and moving millions of dollars every month” (Mizukami and Lemos Reference Mizukami, Lemos and Shaver2010, 36). As an example of cultura livre, the open business model supported by tecnobrega has provided social and economic opportunities for many of Brazil’s underprivileged youth.
Recent scholarship also reveals Brazil’s open-source tendencies. For example, in examining cultura livre and open IP in Brazil, anthropologist Alexandra Lippman (Reference Lippman2014) argues that Brazil has a reputation “for actively supporting alternatives to intellectual property and copyright law” (11). As evidence for this claim, Lippman relies in part on the open IP practices of two Brazilian musical genres: funk carioca and tecnobrega. Lippman claims that funk carioca––a thriving genre of funk music from Rio de Janeiro––musicians “cannibalize” IP by appropriating copyrighted music without securing the necessary licenses (Reference Lippman2014, 14). Additionally, because open business models like tecnobrega do not rely on revenue from IP rights, they are considered inspirations for nonproprietary, “open” methods of trade and commerce. While both funk carioca and tecnobrega do indeed thrive in the absence of IP enforcement, as Lippman (Reference Lippman2014) suggests, it is important to note that the open production and distribution systems upon which these genres rely are “backed by social norms” (Mizukami and Lemos Reference Mizukami, Lemos and Shaver2010, 43). Mizukami and Lemos (Reference Mizukami, Lemos and Shaver2010) posit that “the absence of players seeking effective enforcement of intellectual property rights and the absence of a strong copyright culture are the dominant factors of an environment in which a new, different cultural industry has been able to evolve” (Reference Mizukami, Lemos and Shaver2010, 45). Coincidentally, while Lemos was deeply involved in researching “open business” models in Latin America (Lippman Reference Lippman2014; Lemos and Castro Reference Lemos and Castro2008; Mizukami and Lemos Reference Mizukami, Lemos and Shaver2010), he was also advocating for democratic regulation of Brazil’s Internet based upon similar open values (as discussed in the next section).
In his study of the open cultural practices of Rio’s subaltern youth, George Yúdice (Reference Yúdice2003) offers a slightly different take on funk carioca. According to Yúdice, the subaltern youth of Rio’s favelas use funk carioca therapeutically to cope with the racism and social exclusion they experience because of their lives in the favela (informal, historically low-income communities). At the same time, Yúdice claims that corporate elites mobilize the cultural practices of these disenfranchised youth for private corporate gain, which brings greater hardships to these subaltern cultural producers. By advancing nontraditional business models that rely on “open” platforms, disadvantaged Brazilian youth employ ICTs to support themselves both financially and culturally in ways that were previously unforeseen.
As examples of cultura livre, both tecnobrega and funk carioca are innovative musical and cultural phenomena backed by social norms that rest outside the IP status quo. By advancing cultural innovation through ICTs, these genres illustrate that the open social norms championed by cultura livre have the potential to meaningfully empower underprivileged youth. Indeed, as Lemos has suggested, open business could also become the inspiration for an “open” future, one free of the proprietary interests of private rightsholders (Lemos and Castro Reference Lemos and Castro2008). These open models also became inspiration for Brazil’s visionary Internet bill of rights, the MCI.
The Marco Civil da Internet
In an influential 2007 editorial, Ronaldo Lemos established the basis for Internet governance by arguing that lawmakers could not define Internet crimes in Brazil’s criminal code without acknowledging the corresponding digital rights and responsibilities of individual citizens, businesses, and governmental bodies (Lemos Reference Lemos2007). To develop this concept, Lemos and a team of researchers from the Center for Technology and Society at Rio de Janeiro’s Fundação Getúlio Vargas Law School (FGV Law School) partnered with Brazil’s Ministry of Justice to begin drafting the legislation that would eventually become the MCI. Since Internet governance is a “multilayered system of administration and operational oversight” (DeNardis Reference DeNardis2009, 206), the principles of Internet governance developed by Lemos and his colleagues were the result of a multistakeholder process—an approach where a range of experts from diverse areas of society participate to meaningfully respond to governance issues presented. The multistakeholder process also involved a public consultation phase that allowed Internet users to make suggestions on the bill via Twitter (Patry Reference Patry2014). This public involvement was meant to promote transparency and demonstrate the democratizing values of an open Internet.
In 2009, with the hopes of advancing an Internet law that would provide a free, open, and robust network that would promote security, advance economic development, and strengthen civil society (Arnaudo Reference Arnaudo2017), the group of researchers introduced ten guiding principles of Internet governance.Footnote 3 These open principles––which include promoting values such as human rights, online privacy, net neutrality, and the right to Internet access––would inform and inspire legislation that would eventually become the MCI (Glaser Reference Glaser2014; Arnaudo Reference Arnaudo2017). In 2011, a bill based on these principles was introduced for consideration to the Brazilian legislature, but it stalled when Brazil’s telecom lobby challenged the bill’s provisions on net neutrality, corporate data retention, and intermediary liability (Arnaudo Reference Arnaudo2017). After the Edward Snowden disclosures, which included evidence that the United States had been conducting high-level spying campaigns on Brazilian executives and government officials (Arnaudo Reference Arnaudo2017), the Brazilian government made passage of the MCI a top priority. Former Brazilian president Dilma Rousseff (known widely as Dilma) harshly criticized this US spying in a September 2013 address to the UN, calling it a breach of democracy and international law. Motivated by these spying disclosures, the Brazilian government finally enacted the MCI in April of 2014. When the bill was formally signed into law at the inaugural NETmundialFootnote 4 meeting in São Paulo, Dilma declared to the world that the Brazilian government considered the MCI not only a structure for Internet governance in Brazil but a model whose open principles could be adopted by countries throughout the world (Soares Reference Soares2014). Thus, while the MCI seeks to address national issues of democracy and inequality in Brazil, it also speaks to broader, transnational issues of global Internet governance. At times, however, the open values of Brazil’s MCI come into conflict with the more proprietary modes of transnational Internet regulation.
ZERO RATING – AN ETHNOGRAPHIC INTRODUCTION
One morning during my first week of fieldwork in Rio de Janeiro, I was sitting in the lobby of the TIM (Brazil’s second largest mobile phone provider) store near Ipanema beach. My iPhone had a subscriber identification module (SIM) card from an American carrier and I needed a SIM card from a Brazilian carrier to establish service while in Brazil. As I was waiting in the lobby of TIM, I noticed advertisements for various mobile phone plans. One such advertisement caught my attention. The ad solicited mobile phone subscribers for TIM by offering them free mobile data when using WhatsApp. WhatsApp––the Facebook-owned messaging application that allows users to both send and receive text messages and make local, national, and international phone calls––consequently becomes free to subscribers of this promotion. At that time, I was only remotely familiar with this marketing strategy, but I soon came to realize that these so-called “zero-rating” schemes had grown to be both extremely popular and controversial with mobile phone providers in the United States and in developing countries like Brazil. “Zero rating” (also known as “sponsored data”) refers to the practice in which mobile networks offer free data to customers who use specific services (e.g., streaming videos) or smartphone applications (e.g., WhatsApp). Thus, customers who access this zero rated/sponsored content do not pay for the mobile traffic generated by such use.
In the TIM store that day, I met a TIM sales representative named Agatha. Agatha was a dark-skinned Brazilian woman in her mid-twenties who had worked as a sales rep at TIM for a little over a year. She was from Penha––an area in the North Zone of RioFootnote 5 ––and had about an hour-long commute to work each day at the TIM store in the South Zone neighborhood of Ipanema. Agatha and I spoke to one another in Brazilian Portuguese. I told Agatha that I was in Brazil for extended fieldwork and that I would be living in Rio for the next year. Accordingly, I needed a SIM card to establish service on my device. Agatha asked me if I had a Cadastro de Pessoas Físicas (CPF)Footnote 6 and told me that getting my CPF would be good “practice” for the inevitable bureaucracy I would encounter during my time in Brazil. “I don’t know what it’s like in America, but what do you think Brazilians have to endure on a daily basis?” she asked. Several of my interlocutors had warned me about the frustrations of navigating bureaucratic turmoil in Brazil, but I was curious to know if or how such red tape affected the way people engaged with the Internet. Did the bureaucracy make securing Internet access via mobile phones a burden?
I asked Agatha, “What’s it like here for the average person who comes to TIM to sign up for mobile phone service? What challenges do they face in accessing the Internet on their mobile phones?” Agatha responded as follows:
It all depends. This is Ipanema and people here tend to have more money than folks in other parts of Rio. For instance, many of the customers here are foreigners, like you. They may only need mobile phone service for a limited time and usually have the financial resources to afford it. But even the Brazilians in this area have financial resources. They normally come in this store to purchase or renew their mobile subscription service. But, again, this is Ipanema and people here have money. People with money know other people with money. And when you know people and have money, you can often find a way around bureaucracy in Brazil. In the North Zone, where I live, things are different. People there cannot readily afford subscription service. If they have a mobile phone, they usually prepay for Internet service on their phones, or they find a location where they can use Wi-Fi for free.
It is noteworthy that, in her response, Agatha used the Brazilian Portuguese phrase dar um jeito (to give, find, or make a way) to describe these bureaucracy-avoiding methods. Dar um jeito references the popular Brazilian custom known as the jeitinho brasileiro, which is a form of institutional bypass used to avoid the rules and get things done (Barbosa Reference Barbosa, Hess and DaMatta1995). According to Brazilian anthropologist Lívia Barbosa (Reference Barbosa, Hess and DaMatta1995), while any Brazilian, regardless of their economic or social position, may utilize these mechanisms of social adjustment to emphasize either positive or negative aspects of the Brazilian social system, the social hierarchies in Brazil often mean those with wealth or privilege receive special treatment when compared to their poorer Brazilian counterparts. In this instance, however, Agatha made it clear that wealth, privilege, and class issues play an instrumental part in the institutional bypass that is the jeitinho brasileiro.
How did zero rating impact Internet access among the various communities that Agatha encountered in her work at TIM? Although she was unaware of the technical term “zero rating,” Agatha was familiar with these promotions that offered WhatsApp for free. “Everyone in Brazil uses WhatsApp,” she told me. “So, it’s good if you can use it for free. But here, it’s only offered for free if you have subscription mobile service with TIM. Most people at this Ipanema location can afford subscriptions. People from my North Zone community generally cannot,” she told me. While low-income residents from Rio’s North and West Zones may not be able to afford mobile phone subscriptions, as Agatha suggested, they could still take advantage of the limited, free Internet offered via the zero-rating promotions of their prepaid mobile plans.Footnote 7 While many of Brazil’s downtrodden access the Internet almost exclusively via smartphone (Nemer Reference Nemer2016), which provides residents of these communities the democratic right to speak and be heard (Tacchi Reference Tacchi, Horst and Miller2012), zero-rating promotions have offered these same communities free, limited access to the messaging applications that many Brazilians view as vital to their everyday lives.
THE PREVALENCE OF MESSAGING APPLICATIONS IN RIO
The significance of messaging applications and the zero-rating schemes that make these mobile phone services affordable for so many Brazilians cannot be overstated. In favelas and other underprivileged communities, owning an Internet-enabled mobile phone is fairly common. Indeed, recent estimates indicate that more than 85 percent of favela residents now have mobile phones (Keating Reference Keating2014). However, many mobile phone users in these communities cannot afford the data plans offered by cellphone carriers (Nemer and Tsikerdekis Reference Nemer and Tsikerdekis2017) and therefore rely on free Wi-Fi or promotions like zero rating to access the Web. Additionally, because Brazilian mobile phone carriers generally charge high rates for sending and receiving standard short message service (SMS) messages,Footnote 8 Brazilian mobile phone users have historically not indulged in intensive text messaging. Because of the surge in smart-phone use and the emergence of zero-rating promotions, text-messaging habits in Brazil are on the rise. Mobile phone users are now much more inclined to send texts through messaging applications like Facebook Messenger and WhatsApp. As of March 2015, WhatsApp was the most popular mobile phone application in Brazil and was used by 70 percent of the country’s smart-phone users (Tech in Brazil 2015).
Throughout the course of my fieldwork, I often heard two distinct phrases that conveyed the indispensability of Facebook-owned messaging applications in Rio, and in Brazil more broadly. Before I began fieldwork in December 2014, several Brazilian contacts told me: “Precisa o Face no Brasil” (“You need Facebook in Brazil”). Indeed, my Brazilian interlocutors stressed the importance of having Facebook Messenger installed on my smartphone. Upon my arrival in Rio, I soon learned that very seldom did Cariocas (natives of Rio de Janeiro) make phone calls. They were more inclined to message their friends, family, and even professional contacts using one of these messaging applications. A law student at FGV Law School told me that literally within minutes of meeting people in Rio, she receives friend requests from them on Facebook. She also noted how it seems that almost every social, academic, and political event happening in the city of Rio de Janeiro is advertised with its own Facebook events page.
My fieldwork verified these findings. When meeting new people in Rio, the common practice was to exchange first and last names along with phone numbers, which made it easy to find them on social media. Moreover, when I went to the TIM store to inquire about the high cost of my first phone bill (R$200 for only a month of service), I learned that the high fees were due to my excessive SMS messaging. Agatha told me that if I wanted to reduce the text-messaging fees, I should use a Web-based messaging application like WhatsApp or Facebook Messenger instead. She suggested that prepaid plans were an inexpensive alternative to pricey subscription-based phone plans. According to Agatha, one could easily incur unexpected fees from these subscription plans by accidently exceeding the data allotments. By allowing users to prepay at various price points, prepaid plans were more flexible than subscription services and came without the financial risk incurred by exceeding the data caps. Not surprisingly, most of my favela interlocutors who had smart phones relied on prepaid plans, while those middle-class interlocutors had subscription service. Regardless of the payment method used (subscription or prepaid), as I became more familiar with the Brazilian lifestyle, I realized that most Cariocas did indeed frown upon SMS messaging because of its high cost. Instead, they preferred Web-based messaging applications, like Facebook Messenger or WhatsApp, because they could be used for free with Wi-Fi or zero-rating promotions.
The second commonplace phrase related to the ubiquity of WhatsApp in Rio. “Mande me uma mensagem no Zapp!” (“Send me a message on WhatsApp”) was a phrase that I heard countless times throughout the course of my 2015 fieldwork. Indeed, as of 2019, WhatsApp had an estimated 120 million users in Brazil, more than half of the country’s population (Nemer Reference Nemer2019). While there were surely other messaging platforms to choose from (most notably, Facebook Messenger and standard SMS messaging), during my fieldwork it seemed as if WhatsApp already had a monopoly in the Brazilian marketplace. I learned this lesson while messaging my friend Laura. Laura had moved to Rio from Salvador, Bahia (in Brazil’s northeastern region), ten years earlier and worked at a local university teaching Spanish. While Laura came from a working-class family in Salvador, she made a good living in Rio as a language instructor. Because of her command of multiple languages, she also worked as a language tutor in addition to her university professor duties. I was one of Laura’s clients; she tutored me in Brazilian Portuguese once a week. With such a busy schedule it was thus surprising that, when we first met, Laura did not have a smartphone. Instead, she used a mobile phone that could not connect to the Internet. Due to this circumstance, she was the only person I knew in Rio who did not use WhatsApp.
If being excluded from the affordances of mobile communication via the Internet is “either an act of defiance, ignorance, or the consequence of material misfortune and disadvantage,” as Olivier Sylvain (Reference Sylvain2016, 447) suggests, then Laura’s smartphone deficiency was clearly one of defiance. When I wanted to get in touch with her, I either called––a practice that seemed completely anachronistic by the text-messaging social standards of Rio––or we would simply use standard SMS messaging. But because SMS messaging was so expensive in Brazil, there were times that Laura’s lack of a smartphone was an extreme inconvenience. For instance, there was one rare occasion when I could not make it to my weekly Portuguese lesson. Because Laura did not answer her phone when I called, I was forced to send her an expensive SMS message to relay news of my absence. “Why don’t you have a smartphone, Laura?” I asked frustratedly. “I know, I know, everyone seems to have them. But I don’t like being tethered to anything. And I know that everyone in Rio has them because WhatsApp is the only way people seem to stay in touch these days. But my schedule has gotten so busy lately that I’ll be forced to get one soon, just so that I can communicate on WhatsApp like everyone else,” she said.
In Rio de Janeiro, then, communicating through social media applications was a modo de vida (way of life); text messaging was the preferred means of communication; WhatsApp and Facebook messenger were the preferred messaging platforms. In addition to person-to-person messaging, group chat––which is used to share messages, videos, and even web memes with multiple users simultaneously––was also commonplace. Using WhatsApp was so routine in Brazil that it was employed by businesses for publicity campaigns, customer support, internal company communications, news reporting, and delivery services, and former President Dilma Rousseff and other politicians have used the application for campaign purposes (see Tech in Brazil 2015).
The open values of the MCI, which further the free circulation of ideas (Kelty Reference Kelty2005), help facilitate Brazil’s deep conviction to messaging applications. However, to understand the effect that an open Internet has on these digital communications, one must comprehend the contradictory relationship between net neutrality and zero rating.
NET NEUTRALITY, ZERO RATING, AND THE MCI
Net neutrality is a term coined by legal scholar Tim Wu (Reference Wu2003) to describe the idea that all Internet traffic should be treated equally, without favoring certain services or applications over others. Free speech advocate Melody Patry defines net neutrality as “the principle that all Internet users should be able to access any Web content and use any application they choose without restrictions or limitation imposed by telecommunication providers.” She writes that net neutrality “is a founding principle of the Internet, which guarantees that telecom operators remain mere transmitters of information and do not discriminate between different users, their communication or content accessed. It means that all data should be treated equally and should be sent to their destination with equal speed regardless of who sends them or receives them” (Patry Reference Patry2014, 4).
Similar to openness, then, net neutrality is more than just a concept or idea; it also reflects the original architectural choices that foster the Internet’s open, decentralized network structure, which promotes user creativity and technological innovation. Because Web traffic cannot be influenced by discriminatory delivery mechanisms, net neutrality protects online freedom of expression and individual user choice regarding access to online content (Belli and De Filippi Reference Belli and De Filippi2016).
Protecting neutralidade da rede (network neutrality) is a bedrock principle of the MCI. Prior to the law’s approval in 2014, one of the more contentious debates in approving the legislation focused on its network neutrality regulations. Lobbyists from Brazil’s private telecommunications companies argued that they should be able to manage Web traffic as they saw fit. However, they were met with heavy resistance from Brazilian civil society, academia, the tech sector, and congressional allies who all wanted a democratically managed Internet with equal access for all users (Arnaudo Reference Arnaudo2017). Article 9 of the MCI codifies net neutrality in Brazil and states that all Web traffic must be treated identically, without regard to source, destination, or content. Because these regulatory characteristics promote the Internet users’ freedom of choice in online content, applications, services, and devices (Belli and De Filippi Reference Belli and De Filippi2016), they are consistent with the technical aspects of openness. Moreover, “net neutrality corroborates the decentralized and open architecture of the Internet, deflating entry barriers to the ‘free market of ideas’, and thus setting a level playing field for any user to participate in the development of the Internet ecosystem” (Belli and De Filippi Reference Belli and De Filippi2016, 3). Through its open design principles, the Internet and its tradition of net neutrality therefore furthers a level digital playing field, which is pivotal to technological innovation and democratic participation in the online realm.
While Brazilian legislators worked to secure net neutrality protections through the MCI, zero-rating plans were generating a furor in the tech-policy community. Because zero rating offers the benefit of certain Web content for free by allowing ISPs to select specific content for differential treatment, these promotions are generally considered at odds with net neutrality regulations (Ramos Reference Ramos2014; Marsden Reference Marsden2016; Ard Reference Ard2016). TIM’s promotional offer of WhatsApp (discussed earlier) is a prime example. Since TIM offers WhatsApp for free to its subscribers but does not also offer competing messaging applications (e.g., Facebook Messenger, Viber, or Signal) for free with a TIM subscription, these promotions are discriminatory and, in theory, violate the MCI’s core net neutrality provisions. Indeed, for the Internet to be an equalizing telecommunications platform, it is essential that all citizens have reasonably comparable access regardless of their economic status or geographic location (Sylvain Reference Sylvain2016). As Olivier Sylvain (Reference Sylvain2016) suggests, reasonably fair and impartial access to the Internet is vital “for racial minorities, poor people, and all others who must negotiate structural inequalities in other aspects of their lives in ways that advantaged people do not” (443). Clearly, Brazilians from different socioeconomic backgrounds access the Internet in different ways, as Agatha made clear to me in our discussion at the TIM store. Compared to their South Zone counterparts, for instance, low-income residents from Rio’s North and West Zones are more likely to use a smartphone or other mobile device when accessing the Internet (see also, Nemer and Tsikerdekis Reference Nemer and Tsikerdekis2017). And while mobile Internet access surely helps bridge digital inequalities, mobile devices have a narrower range of functionality than personal computers (Sylvain Reference Sylvain2016). Despite the inequalities in technological hardware, by ensuring that ISPs must treat all digital content equally, net neutrality protections help maintain a level playing field in the online realmFootnote 9 (Belli and De Filippi Reference Belli and De Filippi2016).
While countries like India have banned zero-rating practices (Deleon Reference Deleon2016), others have not effectively regulated these promotions and have thus created a tolerance for zero rating. Such is the case in Brazil, where the MCI protects net neutrality, but the regulatory bodies charged with enforcing this legislation have yet to take prohibitive action against zero rating (Marsden Reference Marsden2016). Nevertheless, because of the guidelines established by the MCI, Brazil appears to be on a path toward prohibiting zero-rating promotions (Arnaudo Reference Arnaudo2017).
A thorough understanding of the open, net neutrality principles of the MCI also makes clear the connection between digital and civil rights. Since anyone disseminating lawful material on a telecommunications network like the Internet is potentially exercising their right to freedom of speech and expression (DeNardis Reference DeNardis2014), net neutrality (and by implication, zero rating) also has continuing implications for democracy. Internet architecture has traditionally been based on end-to-end design principle, which establishes an open and nondiscriminatory network with control and functionality distributed at the end-user level (Belli Reference Belli, Belli and De Filippi2016). This concept has had the ancillary effect of providing end users with “freedom of expression and innovation in an unprecedented way” (Belli Reference Belli, Belli and De Filippi2016, 15). However, promotions like zero rating allow network operators to control the content that reaches end users. Net neutrality rules act as a safeguard to ensure the free expression of end-users and help prevent censorship in the online realm. Moreover, net neutrality regulations limit so-called “walled gardens”––restrictions that affect certain types of Internet traffic (Marsden Reference Marsden2016; Ard Reference Ard2016). Because the users’ browsing options are limited strictly to zero-rated content, zero-rating schemes create restrictive “walls” in cyberspace. As Susan Crawford notes, walled gardens are dangerous because “linking and building are the fundamental attributes of the Internet … but users of a walled-garden ‘zero rated’ Internet can’t even click links that go outside the garden” (Reference Crawford2015). By facilitating “walled gardens,” zero-rating plans allow mobile networks and ISPs to serve as gateways that can restrict speech and control access to the Internet.
There are competing perspectives at play when analyzing the consequences of zero-rating schemes. On one hand, these promotions have the ability to provide free, limited Internet access to those low-income populations that are most in need (Ard Reference Ard2016). Agatha underscored the importance of this fact during our discussion in the TIM store. Because she worked at TIM, Agatha had subscription mobile service, unlike many of her neighbors in the North Zone who were unable to afford such amenities. She therefore saw firsthand how residents from her North Zone neighborhood craved inexpensive ways to access the Internet.
On the other hand, zero rating has the ability to limit and control the Internet access of these same low-income populations. Mobile phone providers, corporate proponents, and many users of the strategy claim that providing free, limited Internet access to those who would otherwise be unable to afford it is better than those users having no access at all (Ard Reference Ard2016). Moreover, in developing countries, zero rating strengthens the profits of ISPs through increased sales of mobile phones and data plans (Zuckerberg Reference Zuckerberg2013). However, opponents claim that zero rating is an effort to establish an Internet controlled by large, private corporations, such as Facebook, which is detrimental to free speech, democratic communication, and an open Internet (Crawford Reference Crawford2015; Marsden Reference Marsden2016; Ard Reference Ard2016).
Similar to the dual characteristics of openness, net neutrality is both a regulatory model and an ideology that represents openness, decentralization, and nondiscrimination, which are rooted in the Internet’s history and infrastructure. According to Internet governance scholar Laura DeNardis (Reference DeNardis2014), these values “are embedded in the design of the Internet’s architecture … [and relate to] … user choice about what information to access and creating a level playing field for the introduction of new information products” (DeNardis Reference DeNardis2014, 149). Because the values of net neutrality are embedded into the Internet’s architecture, they simultaneously employ both the technical function of facilitating Web traffic and the more conceptual role of representing the core values of openness. Through its promotion of net neutrality, then, Brazil’s MCI advances the dual characteristics of openness by furthering an Internet infrastructure and ideology that fosters the free circulation of ideas. The country’s embrace of open values in Internet governance is not surprising given the cultura livre traditions from which it stems.
FREE CULTURE AND NET NEUTRALITY IN BRAZIL
While Brazil’s cultura livre movement and the ideals advanced by the MCI both employ open values, the two concepts share other significant Brazilian connections. Shortly after Lemos’s Reference Lemos2007 editorial advocating for open Internet governance, he and his colleagues from FGV Law School began drafting the MCI and were involved in its legislative process. Moreover, in 2008, Lemos coauthored a book entitled, Tecnobrega: O Pará reinventando o negocio da música (Tecnobrega: Pará Reinventing the Music Business), which addressed how the open business model of this electronic music genre could eventually lead to an open IP future. While the open business model promoted by tecnobrega flourished because of a lack of property rights and music royalties, these same open ideological conventions have allowed the Internet to flourish because they advance an online infrastructure that promotes the free circulation of ideas (Kelty Reference Kelty2005). It is no coincidence, then, that Lemos and his colleagues sought to develop an Internet law that would further an open ideological and infrastructural platform.
The open values of cultura livre and the MCI also stem from the same historical context. Aaron Shaw’s (Reference Shaw2011) work shows how technocratic political support for open-source strategies took root within the progressive Partido dos Trabalhadores (The Workers’ Party, or PT) during the presidency of Luiz Inácio Lula da Silva (known as Lula). Lula took office in 2003. Until the impeachment of his successor––former president Dilma Rousseff––in August 2016, the PT had controlled the Brazilian presidency since Lula’s 2003 inauguration. Taking cues from James Holston’s (Reference Holston2008) idea of “insurgent citizenship,” Shaw argues that a group of “insurgent experts”––politically empowered technocrats who used government institutions to repoliticize open tech policy in opposition to proprietary IP production––mobilized and were appointed to prominent government positions during Lula’s first term in 2003 (Reference Shaw2011, 256). With the help and support of PT leadership, these insurgent experts capitalized on their political appointments to promote and implement open-source ideologies throughout Brazil’s institutional structures. The governmental influence of the insurgent experts led to transformative open-source tech policies termed Free/Livre and Open Source Software (FLOSS), which contradicted Brazil’s prevailing neoliberal doctrineFootnote 10 (Shaw Reference Shaw2011). This historical case study illustrates how the open values behind both cultura livre and the MCI stems from FLOSS and the leftist political leanings of the insurgent experts, many of whom were radicalized in oppositional movements during Brazil’s military dictatorship, which dates back to the early 1980s.
Further evidence of Brazil’s open ideological leanings is found in an influential Wired magazine article (Dibbell Reference Dibbell2004) that shows how the country gained an international reputation for advancing alternatives to traditional IP norms. In this article, Juilan Dibbell argues that through its approach to drug patents, support for the free software movement, and promotion of a free and open Internet, Brazil was becoming an open-source nation––promoting free, universal access to the content controlled by IP rights holders. To support this claim, Dibbell cites Brazil’s successful challenge to US pharmaceutical industry drug patents during the late 1990s. Claiming the country faced a “national emergency,” the Brazilian government threatened to breach international patent laws and produce its own HIV drugs (Dibbell Reference Dibbell2004). The US patent holders in question conceded to Brazil’s demands and licensed the drugs at favorable prices, which marked a significant victory for that country and was the first time a developing nation had come close to violating a drug patent (Dibbell Reference Dibbell2004). Around the same time, Gilberto Gil––the famed musician and, at that time, Brazil’s Minister of Culture––expressed interest in establishing an Internet music repository, which might one day contain “every Brazilian song ever recorded, all downloadable for free” (Dibbell Reference Dibbell2004).
This recent history demonstrates how Brazil’s PT embraced open-source ideology, challenged international patent norms, and promoted open access to copyrighted music. Moreover, this history of PT support for cultura livre ideology demonstrates that promoting the principles of openness, technological innovation, and democracy––principles that are consistent with the foundational values of the Internet––were prioritized years before the MCI was enacted in 2014.
Dependência
Since Facebook––a tech company with headquarters in California––wholly owns WhatsApp, the largest social media market in Latin American (Ruvolo Reference Ruvolo2014) relies almost exclusively on a multinational Western corporation to provide its vast social media and text messaging needs. The MCI was enacted, at least in part, to help mitigate this reliance by stimulating domestic development of ICTs and Internet infrastructure (Arnaudo Reference Arnaudo2017). With the dichotomy between the MCI’s local, open values in Internet governance and the more proprietary concerns of the international tech community, it is clear that technological innovation is important to help alleviate the deep reliance on US tech companies that serve the needs of Brazil’s Internet users.
Although Brazil’s open Internet governance ideals have the potential to further cultural innovation in marginalized communities, scholars have expressed concern that the lack of strong net neutrality regulation will inevitably hinder technological innovation in developing markets (Ramos Reference Ramos2014; van Schewick Reference Van Schewick2015; Marsden Reference Marsden2016). Because the Internet is, among other things, a platform that promotes competition between application developers, creators of such applications must compete for the attention of Internet users. As Tim Wu notes, not only does an open, neutral network support “the emergence of the very best applications” (Reference Wu2003, 142), it also “ensure[s] the competition remains meritocratic” (Reference Wu2003, 146). Because openness can help advance cultural innovation among the disadvantaged, technological innovation is equally important in emerging markets where disadvantaged populations face numerous barriers to developing digital technologies. These populations often face steep financial hurdles, among others, and are no rival to foreign tech companies like Facebook that command a substantial Brazilian market share (Ramos Reference Ramos2014).
Arguments for advancing openness suggest a belief system about how the Internet should work (Wu Reference Wu2003; Kelty Reference Kelty2005). While openness remains essential to cultural innovation in Brazil, the focus of laws like the MCI, which also seek to advance technological innovation, is not without merit. Legal scholarship argues that the emphasis of such policymaking in technological innovation should shift toward more distributional principles that seek to mitigate socioeconomic disparities in Internet access and use (Sylvain Reference Sylvain2016). Nevertheless, the idea that technological innovation, or the lack thereof, can exacerbate economic inequalities, reinforce social exclusion, and deepen the dependency cycles that bind poorer countries to advanced industrialized nations has gained a renewed salience in sociolegal scholarship (Vernengo Reference Vernengo2004; Ramos Reference Ramos2014; van Schewick Reference Van Schewick2015). This theory is not new and evolves from 1950s era dependency research that compared economic growth of advanced western societies to growth in poorer countries. Brazilian economist Theotonio Dos Santos (Reference Dos Santos1971) defines the theory as a historical condition in “which the economy of a certain group of countries is conditioned by the development and expansion of another economy, to which their own is subjected” (226). Dependency therefore focuses on the underdevelopment of certain countries and how that underdevelopment is used to the benefit of dominant states. Because Facebook sponsors many zero-rating plans in developing countries like Brazil, dependency theory provides a useful contemporary backdrop for understanding how tech initiatives from so-called “core countries” can impact technological development in the developing world.
Historically, dependency theory has sought to understand the relationship between the developed world––the advanced industrial societies of North America and Europe––and the underdeveloped regions of Asia, Africa, and Latin America. To that end, Arturo Escobar’s (Reference Escobar1995) work helps us understand how post-World War II development discourse created extreme poverty in regions sometimes described as the “Third World.” Specifically, Escobar discusses how the discourse and strategy of development produced its antithesis: massive underdevelopment, impoverishment, exploitation, and oppression. The “discovery” of mass poverty in the developing world created a development discourse that in turn produced a strategy to develop these impoverished regions and lift them out of their misery. These development strategies, which were initiated in the United States and Western Europe, often left people in poorer conditions than they were in initially. Dependency theory suggests the importance of understanding the origins of any perceived need for development, which are based on “European constructs” emerging from the Western world (Escobar Reference Escobar1995, 7). In contextualizing the post-World War II history of development, Escobar states that dependency can be viewed as a type of “imperial intervention that takes place at many levels––economic, political, military, and cultural” (Reference Escobar1995, 15). Escobar’s work informs recent efforts that seek to understand the role of ICTs in perpetuating dependency cycles.
While Escobar’s analysis of dependency focuses much attention on the history and origins of the theory, contemporary dependency discourse often places an emphasis on the role the ICTs play in perpetuating dependency cycles. For instance, in the developing world, the lack of technological progress is the primary deterrent to economic growth (Vernengo Reference Vernengo2004). This lack of economic growth in developing nations, which is fueled by an inability “to develop an autonomous and dynamic process of technological innovation” (Vernengo Reference Vernengo2004, 552), promotes dependency relationships between the center and the periphery. Meanwhile, in analyzing net neutrality and zero rating, Barbara van Schewick (Reference Van Schewick2015) warns of the adverse impact that zero-rating promotions have on technological development in Latin America. Van Schewick argues that Latin American ISPs typically zero rate the top-ranked applications in a class (e.g., WhatsApp in a class of messaging applications), which reinforces the dominance of these top-ranked apps while making it more difficult for local developers to build market share. Finally, Pedro Ramos (Reference Ramos2014) argues that sponsored data promotions may appear advantageous for users of certain smartphone applications, such as WhatsApp, but may also have the effect of promoting market concentration, restricting local innovation, and reinforcing the economic dependency cycles that already bind many developing nations to their more advanced Western counterparts. Perhaps the biggest threat presented by zero rating, however, is the long-term potential for the “walled garden” platform to create a two-tiered Internet, which would consist of Internet haves and have-nots. In this vein, Ramos suggests, “[T]he gap between those who can pay for data caps and those who cannot afford them could lead to a two-tier Internet: the ‘Internet of the rich,’ or those who are wealthy enough to pay for the unlimited access; and the ‘Internet of the poor,’ which would give access only to a few applications that would be affordable to poor people” (Ramos Reference Ramos2014, 14).
The term “digital divide” has recently fallen out of favor in the social sciences––with the phrases “digital inequality” or “digital inclusion” now considered more practical (Tacchi Reference Tacchi, Horst and Miller2012).Footnote 11 However, the divisions created by a two-tier Internet would surely renew the usefulness of the term by exacerbating social inequality in Brazil. From 2003 until 2016, progressive PT policies have helped mitigate the longstanding social and economic inequalities that culminated during Brazil’s military dictatorship. During its thirteen-year reign, the PT policies of Lula and Dilma lifted an estimated thirty million Brazilians out of poverty (Scott Reference Scott2018). By creating a platform that is not readily assessible to the masses of Brazil’s poor and working-class citizens, a two-tier Internet would run counter to the open ideals of the MCI. Moreover, such a restrictive Internet framework would have a devastating impact on recent PT progress in mitigating inequality and recreate the climate of social exclusion that has existed in Brazil for decades.
CONCLUSION
The limited Internet access offered by the proprietary promotions of international tech companies raises new questions about openness, net neutrality, and democracy more broadly. This article considers the question “Is Facebook the Internet” as a way to demonstrate how open ideals in Brazilian Internet governance run counter to those more closed, proprietary aims of international tech companies. Comparing the values of Brazil’s MCI with the ideals of cultura livre illustrates the recent embrace of open ideals in Brazilian governance and culture. Additionally, examining the contrast between the MCI’s net neutrality protections and the zero-rating practices of international tech companies shows the disconnect between local, open values in Internet governance and the more restrictive, proprietary concerns of international tech companies.
Whether for purposes of text messaging or maintaining a presence on social media, Brazilians rely heavily on Facebook and WhatsApp to serve their social networking needs. Yet, the country’s reliance on Facebook––and the Facebook-owned messaging application, WhatsApp––undermines the open values of the MCI, which are meant to promote both technological innovation and the free circulation of ideas in Brazil.
Bringing the related topics of openness and cultura livre into conversation with net neutrality ideology shows not only the similarity between these discourses but also how these related ideologies are relevant to the open and inclusive aims of the MCI. While the net neutrality provisions of the MCI aim to maintain a free and open Internet, promotions like zero rating––which are often sponsored by Facebook––are corporate attempts that use virtual walls and closure to bring limited Internet access to disadvantaged populations in Brazil and other parts of the developing world. When closed platforms are the equivalent of the Internet for some, they contradict open values of Internet governance in Brazil and more broadly.
