The first two posts of this series on freedom of expression and the internet in Latin America aim at providing 1) basic context around issues of internet governance, and 2) a detailed look at intermediary liability as a mechanism that restricts innovation and limits the online public sphere. This third and final post aims to offer a broad and relatively shallow overview of various ways in which online free speech is restricted in Latin America with the goal of identifying further necessary research and opportunities for policy reform. After reviewing the different mechanisms through which online speech is currently restricted in Latin America I will also take a quick look at arguments for the right to privacy, anonymity, and universal access to the internet.

Censorship (Blocking, Filtering)

Unlike India, South Korea, China, France, and Australia, there are very few examples in Latin America of governments that block access to websites. Rather, the internet tends to be an alternative communication channel to get around more traditional forms of censorship, as happened in Honduras when Radio Globo was taken off air (but not offline) during the coup, and in Venezuela where political satirists took to the web when the government refused to renew the broadcast license of RCTV, a major opposition network.

Map of internet filtering of political content according to the OpenNet Initiative.

Cuba

The two possible exceptions are Cuba and Venezuela, though studies of blocked content in both countries are murky and outdated. Nearly all studies of online censorship in Cuba, such as the OpenNet Initiatives May 2007 study, depend on secondary sources, and most point to Julien Pain’s October 2006 report “Going Online in Cuba” for Reporters Without Borders as an authoritative account. Pain found that there are two types of internet connections in Cuba: “a “national” one that just lets you use an e-mail service operated by the government, and an “international” one with access to the entire Internet.” While the national connection is available at Interet cafes throughout the island that are accessible for ordinary Cubans, the international connection is highly restricted and expensive. Still, Pain found that:

There is hardly any censorship of the Internet in Internet cafes. Tests carried out by Reporters Without Borders showed that most Cuban opposition websites and the sites of international human rights organisations can be accessed using the “international” network. In China, filtering for key-words makes it impossible to access webpages containing “subversive” words. But, by testing a series of banned terms in Internet cafes, Reporters Without Borders was able to established that no such filtering system has been installed in Cuba.

On the other hand, he claims that in cyber-cafes that offer the cheaper “national” connection:

Users have to give their name and address at the door. If they write something containing suspect key-words, such as the name of a known dissident, a pop-up message appears saying the document has been blocked for “state security” reasons. Then the application – word processor or browser – that was used to write the text is automatically closed. So it seems that a programme installed in all Internet cafes automatically detects banned content.

But it is difficult to determine whether Pain actually entered one of these national cyber cafes, and Salim Lamrani points out in a July 2009 piece that Reporters Without Borders’ coverage of Cuba has long been inconsistent.

Venezuela

Similar accusations of Internet filtering have been made recently against Venezuela, but once again the details are murky and it seems that no one has done serious research to determine who is responsible for the filtering. Venezuelan Twitter users first began reporting the blocking of websites in May 2010, three years after the country’s main internet service provider, CANTV, was re-nationalized. The initial group of blocked websites were something of a motley crew: quelacreo, which includes child pornography; FTAchile.com, which explains how to intercept satellite television content, and dollar.nu, which offers market-based exchange rates between the dollar and the (highly regulated) Venezuelan bolivar.

Later that same month Noticias 24 reported that two internet radio stations based in Miami were also being blocked, Radionexx and CaracasRadioTV. But things really got heated on September 26, 2010 when one of the world’s largest blogging platforms, WordPress.com, was blocked for three days during the 2010 parliamentary elections. In addition to all blogs hosted at WordPress.com, the controversial and hugely popular Noticiero Digital was also blocked for three days.

Noticiero Digital first caught the attention of President Hugo Chavez when he accused columnist Roberto Carlos Olivares of “attacking constitutional order” and “supporting a coup d’état.”

There are two versions of what happened when WordPress.com blogs were blocked during the Venezuelan elections. The first, which was pieced together by Venezuelan bloggers, argues that the National System of Telematic Incident Management (VenCERT) monitored 1,500 websites leading up to the elections and found that 48% contained “illegal publication of electoral content.” Bloggers thus assume that the majority of those websites were hosted on WordPress, which led to the block by CANTV. A second version, based on an anonymous source at CANTV, insists that WordPress.com was performing maintenance on their servers which affected CANTV’s proxy cache.

There is still no authoritative version of what happened, but what we do know for sure is that the blocking of Noticiero Digital had nothing to do with WordPress.com. While Noticiero Digital does use WordPress as its content management system, it is hosted on servers based in Texas owned by The Planet.

Further research should interview officials at CANTV, WordPress, and Noticiero Digital to better understand why the websites were made inaccessible with a goal of setting a clear policy so that an information blackout does not occur again during the 2012 presidential election. At the same time, researchers should try to determine the cause that left WordPress inaccessible for several days in late June 2009 in Guatemala.

Intermediary Censorship

Every single month an increasing amount of the information published online is uploaded to websites owned by just a handful of companies: Google, Facebook, Yahoo, and Twitter. This consolidation of content ownership has made it easier for government censors and judges to remove content from the public sphere by threatening these companies with lawsuits, fines, and more. Ethan Zuckerman dubbed the process “intermediary censorship” and Rob Faris says it represents the third generation of internet censorship.

Google’s map of government requests of content takedown.

In April of this year Google launched a map of “requests from government agencies around the world to remove content from our services, or provide information about users of our services and products” (with some exceptions). The Brazilian government leads all others in both the number of data requests about users of Google products (2,434 requests) and the number of content removal requests — nearly 20,000 pieces of content, including more than 18,000 photos from Picasa. The governments of Chile and Argentina have also made more than 100 data requests and, as I noted in the last post, Argentinian courts have ordered seven terms to be removed from Google’s search engine.

Mexico also had a famous case of intermediary censorship in the lead-up to the 2009 gubernatorial election. Election campaigns in Mexico are publicly financed and negative campaigning is illegal, though that has obviously been difficult to regulate online. How is the Federal Elections Institute (IFE) supposed to determine what is official negative campaigning by a political party and what is a clever piece of political commentary by your average internet user? This is the key question that surrounded the heated debate when IFE demanded that YouTube take down a parody of Veracruz governor Fidel Herrera. (The parody is a classic political re-mix which takes a song performed by Gael Garcia Bernal in Rudo y Cursi and changes the lyrics and images to poke fun at the many allegations of corruption by Herrera.) It’s quite possible, perhaps even likely, that the video was produced by the campaign team of a political party, which would make it illegal, but it’s also possible that the video was the creation of a creative internet user, which would make it clear censorship of political expression. According to the YouTube profile of the account that uploaded the video, it was produced by a 40-year-old from Kazakhstan, though that’s the least likely explanation of all. The video is available internationally, but users in Mexico will only see a message informing them that the video has been taken down at the request of EMI:

Cybercrimes Laws

Cybercrime broadly refers to any crime committed using internet technologies. This could be as common as the routine spam emails that ask you to send your life savings to Nigeria, as complex as the use of botnets to bring down websites, and as sensational as using internet chatrooms to lure underage children into illegal sexual activities.

According to Cybercrime Laws, a compendium managed and edited by Stein Schjolberg, Mexico, Nicaragua, Argentina, Brazil, Chile, Peru, and Venezuela have all either passed or introduced specific legislation related to cybercrime. The Organization of American States, which regularly convenes working groups on the topic of cybercrime in the Americas, recently launched the “Inter-American Cooperation Portal on Cyber-Crime,” which offers a thorough catalog of cybercrime legislation in Latin America categorized by both topic and country. The OAS has also published a fascinating background paper titled “A comprehensive Inter-American Cybersecurity Strategy: A multidimensional and multidisciplinary approach to creating a culture of Cybersecurity.”

Unfortunately, the culture of cybersecurity in Latin America so far is vague and often represents the interest of copyright holders more than internet users. Perhaps the most contentious of all proposed bills, the Azeredo bill in Brazil, would threaten online anonymity, restrict freedom of speech, and create vague laws that could be interpreted to punish legitimate expressions of opinion. Despite well organized protests against the Azeredo bill, a new Brazilian congress fresh of full faces is ripe for lobbying by both sides.

To emphasize the glaring problems with current cybercrime legislation isn’t to deny the real threat and cost of cybercrime in Latin America. A survey by Trend Micro found that Brazil, Argentina, and Colombia are among the top ten spam producers worldwide. The three Latin America countries are allegedly responsible for 14.55% of worldwide spam despite a combined GDP that makes up less than 4% of the global product. Their report on Latin America continues:

Take the Mexican “Tequila” Botnet (and its offspring, the “Mariachi” Botnet) as examples of this. A Botnet is a collection of thousands of hijacked computers which are controlled by a “bot herder” to perform criminal activities. The “Tequila” Botnet was discovered by TrendLabs by late June 2010. It took advantage of the controversial news about an allegedly missing four-year-old girl in Mexico – Paulette Gebara Farah – who was later found dead in her own bedroom. Cybercriminals crafted messages with a supposed Adobe Flash movie of Paulette’s family private life. Readers opening those messages turned their computers into Internet zombies, vulnerable to perform coordinated criminal activities.

TrendLabs’ research reports that the Tequila Botnet grew to some 2,000 computers, most of them in Mexico. Such a small Botnet can be rented for around $10 per day for sending Spam messages, fake phishing emails or attacking your competitor’ web site through Denial-of-Service techniques.

Another 2010 report, this time by California-based Zscaler, found that Latin America has become a hotbed of computer viruses, botnets, and malware. Among the top ten leading countries around the world are Honduras, Bolivia, Peru, Argentina, Paraguay, Ecuador, and Colombia.

A 71-slide long presentation by Cédric Laurant offers a comprehensive overview of cybercrime threats, laws, and pending legislation in Latin America.

Further research needs to analyze how to best confront costly cybercrime without restricting the rights of regular internet users and civil society as they use the internet to affect positive social change.

Banking Laws

A number of countries have laws against inciting financial panic, but it is increasingly clear that in Latin America these laws are being used to restrict legitimate criticism of financial institutions. In May 2009 Guatemalan police arrested Jean Ramses Anleu Fernández for allegedly spreading financial panic over Twitter, a new crime that was introduced into Guatemala’s criminal code six months earlier. In Venezuela two Twitter users were arrested on July 8th, accused of “disseminating false rumours” to “destabilise the banking system,” according to Reporters Without Borders.

Further research should aim to identify what laws against financial panic are indeed legitimate while ensuring the freedom to criticize the financial industry and particular financial institutions.

Network Neutrality

Network neutrality is a basic, but controversial principle of the internet which says that all data can pass over the network without discrimination. Without network neutrality many argue that Skype would never exist as it is not within AT&T’s interest to allow their users to make international voice calls for free. (In fact, in April 2009 T-Mobile, the largest German mobile telecommunication company, announced that was blocking Skype.) Network neutrality has direct implications for freedom of expression, as it ensures that all internet users – regardless of their wealth or social status – have equal access to make their content available to any other internet user.

Only one country in the entire world has managed to pass a law that clearly defines, guarantees, and enforces network neutrality, and that is Chile. Further research should look at the social and economic impact of network neutrality in Chile. Researchers should also study the advocacy campaign Neutralidad Sí! as a case study of how activists managed to pass network neutrality legislation despite significant lobbying from telecommunications companies. Two excellent starting points for this research are the article “Ley de Neutralidad de Red en Chile: ¿Cómo diablos se logró?” by Alvaro Peralta in FayerWayer and “¿Quién quiere acabar con la neutralidad en la Red?” from El País.

A brief note on access, intellectual property, and privacy

This series of posts about internet governance and online freedom of expression in Latin America was inspired by my attendance of a meeting in Buenos Aires organized by Frank La Rue, the “Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression” of the United Nations. (Lord knows how he fits that on a single business card.) The meeting, which was funded by Open Society Foundations‘ Information and Media programs and Sweden’s Ministry for Foreign Affairs, aimed at bringing together human rights experts with technologists to discuss topics related to online freedom of expression in Latin America.

After reviewing some of the information that I have documented in this series of blog posts, Frank La Rue made the point that an uncensored internet is still only useful to those who have access to the internet. For the past year or so La Rue has been building an argument in favor of treating access to the internet as a fundamental human right, as it has been recently declared by Costa Rica’s Constitutional Court and the Congress of the Mexican state of Colima. While everyone at the meeting unanimously agreed that expanding access to the internet is a net good (especially among the rural poor) there was considerable disagreement about what are the best models to encourage broader access. Further research must be undertaken to identify successful models to increase competition, broaden internet access, and lower prices. Researchers should examine initiatives that come from governments, civil society, and the private sector to most effectively broaden quality internet access.

Claudio Ruiz of Derechos Digitales emphasized that even if internet access is increased in Latin America that does not necessarily mean that access to information and knowledge will also increase unless intellectual property law is reformed, including clear legal protection and definition of fair use. Further research should examine proposed legislation for fair use in Latin America, the impact of open access laws in Brazil, and the impact of Creative Commons licenses in particular Latin America countries.

Katitza Rodriguez of the Electronic Frontier Foundation emphasized that we must not focus solely on freedom of expression without also considering the right to privacy and anonymity. There was considerable concern to proposed plans by the Obama administration to outlaw end-to-end encryption which keeps online communication private and anonymous. If enacted the legislation would likely be copied by other governments, including those in Latin America. There was also concern about data retention of personal information. Data can be retained by governments who build databases in the name of security or by commercial interests that build databases for targeted advertising or to sell personal information. No matter what the case, the participants of the workshop unanimously agreed that internet users have the right to know what personal information about them is being retained, and what it is used for.

Further Recommendations

As you can see above, a significant amount of preliminary research and documentation already exists about legal threats to online freedom of expression, but donors tend to continue funding duplicate research by individual institutions rather than collaborative research networks that piece together already existing content. Rather than more PDF reports that tend to get filed away more often than actually read, it would be great to see more collaborative reporting and legislative analysis in both Spanish and English on existing sites like Threatened Voices, Global Voices Advocacy, and OpenNet Intiative.

I also recommend an in-depth study of Brazil’s Marco Civil both as a regulatory framework to guarantee the rights of internet users and as a legislative process to serve as a model for other countries looking to develop internet regulation.

I have aimed for this series of posts to be as thorough and comprehensive of a review of internet governance and online freedom of expression as possible. If you feel that I have missed any important topics or case studies please do leave a comment to let me know.