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Bolsonaro turns data protection into a military affair
Natália Scalzaretto . Oct 20, 2020
Image: VectorPot/Shutterstock
After much delay, Brazil is finally ready to set up its National Data Protection Agency (ANPD), a key element for the functioning of the country’s new regulations on data protections.
The Senate’s Infrastructure Committee knuckled down to confirm the appointment of the newly-formed agency’s board of directors — but the development was not without controversy. True to form, of the five board members selected by the Jair Bolsonaro administration, three have military backgrounds, sparking fears among society over the handling of their personal data.
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<p>As the ANPD is a new agency, the <a href="https://www.uol.com.br/tilt/noticias/redacao/2020/10/17/conheca-os-indicados-por-bolsonaro-para-comandar-a-anpd.htm">inaugural board of directors</a> will be tasked with laying the foundation for how the 2018 General Data Protection Law will be enforced in Brazil. For the job, President Jair Bolsonaro picked three military officers, and two civilians.</p>
<p>In a legal safeguard against the agency’s directors being changed completely in one fell swoop, each member will have different term limits, ranging between six and two years (with the military directors awarded the longest tenures). In future, all board members will be empowered for four-year terms. </p>
<h2>Who are Brazil’s first data protection regulators</h2>
<ul><li><strong>Colonel Waldemar Gonçalves Ortunho Jr.</strong> Appointed to a six-year term as the ANPD president, Col. Ortunho served as chief of the state-owned telecommunications company Telebras before his nomination.</li><li><strong>Colonel Arthur Pereira Sabbat.</strong> Previously working as director of the president’s security cabinet, Mr. Sabbat will have a five-year spell on the ANPD board. He is considered to be an expert in information security and drafted the government’s cybersecurity policy — which is largely disregarded by President Bolsonaro, who insists on using his private phone and traditional, less secure messaging apps for talking with allies.</li><li><strong>Joacil Basilio Rael.</strong> A graduate from Brazil’s prestigious Military Engineering Institute (IME), he previously worked under Col. Ortunho, and will serve on the board for four years.</li><li><strong>Nairane Farias Rabelo.</strong> A lawyer from the northeastern state of Pernambuco, she specializes in privacy issues and will have a three-year term.</li><li><strong>Miriam Wimmer.</strong> A civil servant in Brazil’s National Telecommunications Agency, Ms. Wimmer is a law and innovation professor at an institution owned by a Supreme Court justice. She was given the shortest term of all: just two years.</li></ul>
<p>If these appointees are given final approval in a Senate floor vote, Brazil will become one of the only countries — among the top 16 global economies — to trust data privacy issues in the hands of military officers. According to think tank Data Privacy Brasil, the list is completed by <a href="https://www1.folha.uol.com.br/mercado/2020/10/bolsonaro-nomeia-tres-militares-para-autoridade-de-protecao-de-dados.shtml">Russia and China</a>, two regimes known for using data in order to crack down on political opposition.</p>
<p>China perhaps best epitomizes the abuses anti-democratic regimes may commit using big data. A <a href="https://www.hrw.org/news/2018/02/27/china-big-data-fuels-crackdown-minority-region">2018 report by Human Rights Watch</a> accused Beijing of building and deploying a predictive policing program based on data analysis in the Xinjiang region — where members of the minority Uyghur ethnic group are systematically sent to “political education centers.” </p>
<h2>The urge to regulate</h2>
<p>In their confirmation hearings, the nominees highlighted the need for the data privacy watchdog to quickly regulate gray areas in the legislation, as a way to provide legal safety for Brazilian citizens and companies — and avoid unnecessary litigation. Ms. Zimmer even highlighted the economic impacts of the law for Brazilian trade relations, saying this “regulatory effort is essential for Brazil to enter global chains.”</p>
<p>Generally speaking, the future board members showed concern over establishing the grounds through which data privacy laws will work, highlighting their responsibility and prerogative to act as umpires in this new field of expertise. One of the main aspects is the apparent consensus on protecting personal data as a fundamental human right — and how to react to threats against it. </p>
<p>The board also stressed their will to create an educational and less punitive agency. In Col. Ortunho’s view, the regulator “has to favor constructive engagement with the organizations responsible, focusing on rewarding adequate behavior, teaching, debating and engaging the agents — using punishments only as a last resort.”</p>
<p>According to Alisson Possa, a Brazilian lawyer specializing in Digital Law, the debates in the Senate left a huge blindspot unaddressed: transparency issues — a key aspect when talking about data privacy.</p>
<p>Mr. Possa believes that a military profile may give the data protection watchdog a boost under President Jair Bolsonaro. “Moreover, it could lay the groundwork for strict enforcement of regulations.”
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