Moraes and Dino use fragile data from an activism group against big techs

Although last Tuesday (2) was marked by intense debates in the Chamber of Deputies on the so-called “PL das Fake News (PL 2630)”, which was scheduled to be voted on that day, the date was marked by the interference of actors from other powers, directly interested in the approval of the bill, who used the power of the State to try to avoid the proposal’s defeat, if it went to plenary.

Attempts by the federal government to interfere in the debate that was taking place in the Legislature were given in particular by the Minister of Justice and Public Security, Flávio Dino, who called a press conference during the day to announce a series of measures against Google. The technology company had since the beginning of the day a notification on its website with a link to a text with the title “How PL 2630 can make your internet worse”. In addition to ordering the exclusion of the report, Lula’s minister (PT) demanded that the company publish a counter-advertisement with messages favorable to the Fake News PL under penalty of a fine of BRL 1 million per hour of non-compliance.

In an effort to justify an alleged restriction of content favorable to the bill by communication platforms, the minister even released fake news that was later classified as “ridiculous” by businessman Elon Musk, owner of Twitter.

In parallel to Dino’s action, the Minister of the Federal Supreme Court (STF) Alexandre de Moraes – another strong defender of the regulation of social networks through the bill in question – also acted quickly against big techs and ordered the immediate removal of all ads that were against the Fake News PL. In addition, it determined that the directors of Google, Meta (owner of Facebook, Instagram and WhatsApp), Spotify and Brasil Paralelo be heard by the Federal Police for possible abuse of economic power and alleged contribution to misinformation.

In common between Moraes and Dino’s offensives against big techs is the foundation in a report produced by Netlab, a research laboratory dedicated to left-wing political activism that works with public resources within the Federal University of Rio de Janeiro (UFRJ). The group of activists is openly in favor of the Fake News PL and has even sent suggestions to be added to the proposal, which, in theory, would compromise its exemption to create a technical baseline report to Justice and the government.

Even so, it was this opinion that supported Moraes and Dino’s decisions to justify direct interference in Google’s content precisely on the day that the bill was scheduled to be voted on.

The justification of supporters of the Fake News PL is that the measure, widely criticized for threatening fundamental rights and directly affecting freedom of expression, would protect the population from misinformation and hate speech. However, 76% disagree with the bill according to a vote on the website of the Chamber of Deputies. Even against the will of the majority of the population, Moraes suggested, in the decision that framed directors of big techs, that if Congress does not approve the measure, the Supreme Court itself will be able to regulate the networks.

What does the report used by the STF and government against technology companies say

The report released on May 1 by Netlab, called “The war of platforms against PL 2630”, maintains that Google, Meta, Spotify and Brasil Paralelo ran ads against the PL of Fake News with little transparency and circumventing its terms of use . According to activists, this could constitute an abuse of economic power on the eve of voting on the bill as it tries to impact public opinion and the vote of parliamentarians.

The text ignores all the risks to freedom of expression expressed by the portion of the population opposed to the measure, which were being addressed in the communiqués released by technology companies, and focuses only on economic interests that involve the bill.

Netlab also suggests that Google would be manipulating search results for users who searched for PL 2630. It also says that the link placed on the home page of the site that leads to the page with criticism of the PL of Fake News would be an “attack ” to the regulation of social networks.

The text also says that Google would be displaying “harmful” and “hyper-partisan” sites on the first page of searches for terms related to the bill. One of the sites mentioned is Boletim da Liberdade, owned by former federal deputy Paulo Ganime (Novo / RJ), which displays in real time a scoreboard with the updated number of federal deputies in favor and against the Fake News PL. Other vehicles with a conservative bias, critical of the proposal, are also labeled “harmful” by militants.

The report also questions the low transparency of the search engine in relation to the availability of data on paid content, which does not allow access to the authors of the advertisements, segmentation, amounts invested and users reached.

Similarly in relation to YouTube, the group of activists questions the fact that videos that question the bill are ranking well, appearing among the first places in searches. Finally, they complain about the sending, by the video platform, of a statement to registered content producers pointing out risks of the Fake News PL.

In 2021, the People’s Gazette already showed the intense mobilization of professors and students who work at Netlab to defend agendas with a clear ideological bias to the left. The target of the group’s “research” is, in most cases, the “conservative militancy”, which is usually classified as “extreme right”. Disinformation, a topic frequently addressed by activists, is analyzed as being something almost exclusively practiced by people aligned to the right, while the commission of fake news by actors of the left is summarily ignored.

Report is non-technical and full of subjective analysis, says cybersecurity expert

In the assessment of digital crime expert Wanderson Castilho, CEO of Enetsec, a US company that works with cybersecurity, the report mentions a relevant topic, which is the lack of transparency about advertisements served on communication platforms.

The specialist, on the other hand, says that the alleged manipulation of results in the Google and YouTube search systems is very unlikely, and that the report only assumes, but cannot prove such an occurrence, which would only be possible through expertise carried out in the algorithm.

“The way the results are displayed has to do with the platform’s algorithm. I have acted in more than a hundred cases in which there were the same doubts related to a possible manipulation of data, and the assumptions are not supported. Making these deductions only with prints of searches carried out is not a valid technical argument before the courts”, explains the expert.

Another point questioned by Castilho is the way in which the group positions itself in a report in technical terms. Throughout the report, the activists clearly manifest their position in favor of the project and seek to reinforce their theses in the arguments. “When making a technical opinion, it is not correct to stick to opinions, but to focus only on essentially technical issues. And that is a laboratory, so when you include the analysis of the authors in the report, trust in the document is removed, which becomes biased”, says the specialist. “The text is already giving its political opinion on top of the technical reports, which invalidates everything. It is not an impartial report”, he continues.

For a jurist, Moraes’ arguments for framing big techs are fragile

In the assessment of Igor Costa Alves, specialist in Constitutional Law and Master in Law from the University of Lisbon, there are weaknesses in the decision of Minister Alexandre de Moraes, who pointed out possible abuse of economic power by big techs.

“The abuse of economic power is a concept of electoral law, therefore inapplicable to the case, and also of constitutional law. The Constitution provides for the free exercise of economic activity, but also provides for the recrimination of the abuse of economic power, which seeks to dominate markets, market monopoly. It does not seem to me that the companies cited in the decision are abusing economic power simply by disclosing information and positions contrary to the Fake News PL”, says the jurist, who emphasizes that the Civil Rights Framework for the Internet emphasizes freedom of expression as the foundation of the law.

As for the Netlab opinion used in the decision, Costa Alves considers that it is fragile to base such a serious decision, which restricts freedom of expression and content creation, only on a report. “The use of only one survey carried out by a university does not seem to me to provide an epistemic-empirical backup – to use a term by Robert Alexy, a jurist often cited in STF precedents – for the judicial decision”, he says. “It is extremely fragile to mention only this research to justify an intervention in very expensive constitutional freedoms”, he reinforces.

Moraes juggled to include big techs in the fake news survey, of which he is the rapporteur

The decision of the STF minister last Tuesday, made ex officio – that is, on his own initiative, without being provoked by the Public Prosecutor’s Office –, takes place within the scope of Inquiry 4781, popularly called the “fake news inquiry”.

It turns out that the investigation, which is confidential, investigates alleged crimes against honor and dissemination of false news against ministers of the Supreme Court and has nothing to do with the alleged violations that technology companies would have committed. The maneuver, which allowed a member of the Judiciary to interfere in a debate in the Legislature on a topic of broad relevance to the population, put the case under the arms of the minister, who is the rapporteur for the inquiry.

Finally, Moraes only raised the secrecy of the decision he took, but kept the rest of the inquiry in obscurity, which has lasted four years with a series of profiles on social networks of opponents of the blocked STF and lawyers of those investigated without full access to the records of the process, which violates the legislation on prerogatives of lawyers and the Binding Precedent 14, of the STF itself.