Mexico: In Defence of Network Neutrality and the Institution Meant to Protect It
Network Neutrality, the principle that prohibits Internet Service Providers from treating Internet communications unequally, is currently under threat in Mexico. The Federal Institute of Telecommunications (“IFT” for its acronym in Spanish) is considering the approval of a regulation—the Draft Guidelines on Traffic Management and Network Administration (“Draft Guidelines”), published in December 2019— that would permit ISPs and authorities to abuse their power over Internet users by opening the door to paid prioritization, censorship, and invasions of privacy. A comment period for the Draft Guidelines is open until July 15. In response, thousands of submissions from citizens and civil society members have been submitted which reject the proposed text.
In 2013-2014, Mexico passed a reform that overhauled its Telecommunications and Broadcasting legal framework. The reform created the IFT as a constitutionally autonomous organ, partially in response to a push from civil society to break from “decades of abuse from de facto powers hogging the radio spectrum, violating freedom of speech and hindering the participation of community and indigenous actors in broadcasting and telecom services.” Among many other modifications, articles 145 and 146 of the Federal Law of Telecommunications and Broadcasting required the IFT to issue Guidelines to protect network neutrality, following the principles of freedom of choice, non-discrimination, privacy and transparency. The Guidelines are meant to be consistent with that mandate, but the current text fails as it reflects the economic interests of Internet Service Providers (“ISPs”) over those of Internet users, as a result of lobbying from those companies.
The main threat to network neutrality from the Draft Guidelines is that the text makes it possible for ISPs to establish paid prioritization—that is, providing faster internet connection to apps, sites or services that may pay for it, while slowing down the rest of the network. The proposed regulation does so by allowing ISPs to provide “distinct” and “specialized” Internet services, and while some provisions try to reduce abuses linked to paid prioritization, they still allow for ISPs to benefit unjustly from their position, harming the values underlying network neutrality.
Another criticism of the proposed text is regarding the conditions where ISPs may exceptionally block and restrict internet traffic. The terms, as drafted, are too broad and give room for authorities and ISPs to abuse them. By being unclear on which authorities and in what cases blocking may be requested, the Draft Guidelines open the door to censorship. They also enable ISPs to establish restrictions on content if they obtain consent from customers. This provision might be exploited by ISPs, for example by requesting authorization from users during the sign-up process in ways that are deceitful or confusing.
Other criticisms of the Draft Guidelines include: the breadth of criteria for traffic management and network administration policies that ISPs craft and follow; privacy abuses that are likely to result from ISPs monitoring traffic to distinguish between prioritized and non-prioritized apps, content and services; and the lack sufficient transparency provisions to empower the IFT and internet users to monitor whether ISPs are living up to their responsibilities under the network neutrality rules.
Digital rights NGOs have voiced their concerns as part of the campaign Let’s Save the Internet (“Salvemos Internet”), calling on citizens to voice opposition to the proposal through the consultation process. As the deadline to submit comments comes to an end (15 July 2020), we encourage internet users to submit their statements through the campaign’s site or directly at IFT’s website.
Unfortunately, despite the importance of this discussion to Mexico's digital future, it has recently been eclipsed by a debate on the existence of the IFT itself. On June 10, Senator Ricardo Monreal, coordinator of the ruling MORENA Party in the Senate, presented an initiative to modify articles 27 and 28 of the Constitution to dissolve the IFT, as well as the Federal Commission of Economic Competition (“COFECE”) and the Regulatory Commission of Energy (“CRE”). For the sake of austerity, the three organs would be replaced by a National Institute for Markets and Competition for Public Welfare (“INMECOB). The proposal justifies this idea because of the harm done to the Mexican economy by the COVID-19 pandemic, as well as the Administration’s commitment to reduce government expenditure. Yet, the projected savings of this endeavor—500 million pesos a year—are negligible in terms of a federal budget that in 2020 exceeded 6 trillion pesos, while the weakened institutions could end up being more costly for citizens in terms of rights protection and economic harm.
A coalition of civil society members, led by Article 19, have blasted the proposal, calling it a grave setback to human rights, particularly freedom of expression. Many other voices, including former-IFT commissioners, raised their concerns as well. Due to the public backlash, on June 14, Senator Monreal announced he would postpone the initiative and begin an open process of discussion. However, the fact that dissolving the IFT is even on the table is very worrisome. The IFT has the objective of efficiently developing broadcasting and telecommunications in Mexico. It is in charge of regulating and supervising the use of the radio spectrum, networks and broadcasting and telecommunication services, and it also oversees economic competition across this sector.
President Lopez Obrador expressed support for the initiative—as long as it helps reduce government expenses—and he criticized the IFT as well as the National Institute of Transparency, Access to Public Information, and Personal Data Protection (“INAI”) for being too bureaucratic and expensive. His attacks to institutions and civil society have become commonplace in his daily morning conferences, and he and his political allies have pushed to gain control and modify an institutional framework that, if not perfect, has a crucial role in protecting human rights.
Juan Carlos is a graduate student at the Yale Jackson Institute for Global Affairs. He is also a student fellow at the Information Society Project and Director of IT and Policy at the Good Society Forum. You can find him on Twitter at @juanc_salamanca.