AI-5 Digital, a justified nickname.
Draft bill that defines internet crimes even takes into account the ignorance of its perpetrators.
The project is known as "Digital AI-5". And, although for some it's an exaggeration, I understand that it's justified. Why? Because it creates a permanent state of exception on the internet, controlling and punishing users. Beyond censorship and surveillance, the project presents legal problems ranging from ignorance of fundamental principles of Criminal Law to serious offenses against the Constitution.
In this sense, it is important to clarify that there is a fundamental principle of Criminal Law that guides the regulation of criminalizing norms. According to this regulation, criminal protection is only justified to protect relevant legal assets that represent important social values for all citizens.
The project is the opposite of that. System security tests, for example, or the identification of vulnerabilities (to suggest improvements) are classified as crimes, even though no harm has occurred.
The problems don't end there. A second principle of Criminal Law is also ignored in the text: the principle of specificity, which requires the State to draft criminal offenses in a clear and restrictive manner, preventing their arbitrary application. In other words: every individual, in order to behave according to the rules of society, must clearly know what is prohibited. How, then, can a bill be approved that punishes the citizen and, at the same time, vaguely and broadly describes the conduct it aims to regulate?
A clear example is the definition of "computerized system." Now, is it sufficient to say that a computerized system is any system capable of processing, capturing, storing, or transmitting data electronically or digitally or in an equivalent way (which includes all software, operating systems, or programs embedded in any device)? No.
Every time we raise the topic of the times we live in, we talk about the speed at which things happen and technology evolves. What is new today is very likely to be outdated in a short time. This is true not only in matters relating to technology; after all, we live in the age of intellectual property, electronic financial transactions, and virtual social networks.
Our businesses already have self-service checkouts, and many banking transactions don't require an employee to be present. Therefore, the transformation that the law is obviously undergoing cannot be excluded from this evolutionary process. The law must adapt to the new dimensions of social life and, consequently, be attentive to the particularities of the digital age.
In this sense, information should be treated as a public good. This means considering freedom of information and its unrestricted flow as the basis and prerequisite for a free economic, political, social, and cultural system. Bill 84/1999 does the opposite. Its central theme is the potential criminalization of conduct that guarantees this freedom. It represents an obstacle to national development.
Criminalizing common behaviors in the digital world, without any real risk of harm to anyone or anything, is creating a simplistic solution; it hinders a pace of development that we have already consolidated and that allows us to be a world power. Regulating online conduct cannot create yet another space for the State to act as a punitive entity.
I believe that limits should be created for its exercise, guaranteeing due freedom in the virtual world, which allows for accountability for abusive conduct, without resorting to the curtailment of fundamental guarantees.
Finally, I emphasize the fact that there is no anonymity on the internet. The crimes are real, committed by real people. The medium in which they occur is virtual. With investment in intelligence – and not in punishment – the solution to the problems is simpler and more effective. And the framework plays a fundamental role, as it determines the rights and duties on the internet. Only after its approval can a discussion about punishment and the classification of cybercrimes take place.
Manuela D'Ávila is a federal deputy (PCdoB-RS).
This article was originally published in O Globo on July 31, 2011.