Democracy after the Internet - Brazil between Facts, Norms, and Code

This chapter is dedicated to a discussion of the main approaches to the relationship between the Internet and democracy. A brief presentation of the utopian and dystopian arguments will be followed by a realistic critical analysis that will lay out the main critical points of the assumption that the Internet naturally enhances democracy. I then present some of the possibilities of power shifts the Internet opens, as these are analysed in the literature. The chapter closes with an analysis of the process of commodification of the Internet, a process that has moved the Internet from a space of freedom to one where possibilities of hidden control increasingly emerge.

In this section I offer a panorama of Jürgen Habermas’s contribution to a discursive theory of law and democracy. As I indicated before, my central theoretical tools are given by Habermas’s theory, so it becomes methodologically important at this point to lay out the key points serving as the basis for the development of this work. In particular, we need to be clear on the meaning Habermas ascribes to the concepts of democracy and legitimacy and to autonomy and recognition, for these concepts are extremely relevant for a constitutional analysis of the interaction between the Internet and democracy I intend to pursue.

This chapter is dedicated to a presentation of the Brazilian constitutional state and its antecedents. The idea is to provide a background to the socio-constitutional reality into which the Internet penetrates and which will form the object of the analysis I propose. It starts with a brief explanation of Brazilian political history, focused on the construction of the conceptual and actual citizenship towards the ideal of reciprocal recognition. Some remarks on the political disputes that took place during the elaboration of the current Brazilian democratic constitution follow. I clarify how the concept of citizenship was normatively constructed in and around this constitution, and draw attention to the links between Habermas’s theory and the values embraced by Brazil via the Constitution. The concepts of formal and material constitution are briefly presented to base observations on the external tension between facts and norms, indicating how the Brazilian constitutional order fits into this tension. Finally, some recent cases in which the Brazilian Supreme Court – the Supremo Tribunal Federal (STF) – played an important role for the advancement of mutual recognition are presented. The chapter ends with a brief section that links this fragmented reality to the analysis of the Internet’s penetration.

This is a brief chapter opening the second part of the book focused on the Brazilian democratic order after the Internet. The word virtualized alludes to the fact that the order is to some extent formed by the novelties of the virtual dimension, as well as to the fact that democracy in Brazil is still in the process of being completed. The chapter introduces the main plans for universalising Internet access in Brazil and presents the relevant barriers for its implementation. It introduces the analysis that will follow in the next chapters.

This chapter addresses the use of Information and Communication Technologies in Brazil. In view of all of the Internet-connection expansion plans and the problems encountered implementing them, and considering the inequalities of Brazilian society, it is important to have an idea of the point at which Brazil stands as concerns the possibility of accessing the Internet. Given the importance that Internet access has acquired, it is vital to take a look at the data on the digital divides in Brazil. These are the indicators that are supposed to drive the framing of law, regulation, and policies.

This chapter addresses the ways in which the Internet offers possibilities for empowerment, along with the components of empowerment. In a context of social and digital divides, inclusion and recognition become central concerns. With the Internet having penetrated so deeply in the society as to change the daily lives of people and the way they interact and see one another, the real possibility of “being” online becomes fundamental. However, the users’ social context and their level of insertion in the offline society define the importance they will ascribe to online experiences and how empowered they will feel. Especially for those who somehow felt socially excluded in offline social structures, online experiences represent a way to feel connected, closer, and recognized.

From the perspective of deliberative agents taking part in a democracy that unfolds through the flux of exchange and interaction beyond the institutions, from the perspective of people who bore the status of second-class citizens in the history of Brazilian democracy, the Internet might open new possibilities for recognition. It is interesting to observe how these opportunities are being used and the emancipations they are making possible.

This chapter deals with the challenges Internet poses to democratic legitimacy. The awareness of the fact that the Internet does not have inherent characteristics paves the way to questioning the legitimacy of the choices behind the definition of the software’s design. The section evolves around the main ideas connected with Lessig’s assertion that code is law and with the possible ways of regulating code. First, I address the problems of democratic deficit related to excluding citizens from participation in the political choices that delimit their space of freedom in online interactions. I then comment on the danger of virtual paternalism, which emerges from the choice of disabling illegal behaviour instead of living to citizens the option of bearing the punishment connected to non-compliance with law. At last, I draw attention to the power of code in hindering or promoting the enforcement of democratic law, and the need for a public debate on regulation of code and transparency.

Following up on the theme of the integrative challenges faced by law in Brazil, in the present section I will analyse the Brazilian regulations and laws that bear a connection to the online world. I will thus focus not only on those laws and regulations that are specifically designed for online interaction but also on those which are designed for the offline world, but which need to be interpreted and applied in a different way in order to adapt to the online dimension of human interaction. The way citizens are treated as users should be coherent with the rights of citizenship, and in the same way the rights of citizenship should be adapted to encompass the possibility of empowerment and development brought about by the use of the Internet.

After this analysis, the panorama of the interaction between the Internet and democracy should be complete enough for an analysis of its effects as concerns the constitutional democratic perspective.

This chapter is concerned with the cycle involving the preservation of the conditions for empowerment, and the following need for more permeability in the political decision making processes. First, I comment on the ways in which the Internet calls for a different understanding and application of some relevant constitutional rights in order to allow the reproduction of the Internet’s empowerment potential. I present the possibilities for the recognition of a right to Internet access in Brazil; then I discuss the implications and application of the right to freedom of expression in online interaction; and finally I turn to the power shifts that have prompted a deep reflection on copyright law. The last section is dedicated to a brief note on the networked movement that started in June 2013 in Brazil, followed by an analysis of the achievements and caveats of the most important post Internet initiatives to allow direct participation in the decision making processes in Brazil.

In this chapter, I set out my conclusions. I analyse, in the specific case of Brazil, whether the Internet has changed democracy, especially in all those aspects that involve the private and public dimensions of individuals’ autonomy. I also offer my impressions on the extent to which the various changes are positive and negative, and how the social order has been reacting to, resisting, and appropriating these changes. On a more normative note, I point out what seems to be the paths that ought to be followed in the effort to incorporate Internet-related changes in order to promote democracy. I end the discussion presenting general remarks resulting from my observation of the penetration of the Internet in democracy, through the lens of the discourse theory.