OPEN GOVERNMENT, LOBBYING AND QUALITY OF LEGISLATION - a

case study on the Brazil’s internet bill of rights´ regulation process.

Felipe Lélis Moreira1

Abstract:

The quality of the legislation that comes both from the legislative and the executive

branch is one problem that companies, citizens and all the society daily needs to deal

with. According to the Legistics, a science that proposes the adoption of methodologies

and techniques for good laws, the dialogue with the recipients of the legal burden needs

to be considered as a priority. Crowdlaw is a tech-enabled approach for drafting

legislation that offers an alternative to the traditional method of lawmaking, which

typically occurs behind closed doors. Its goals are linked to Open Government´s core

principles: participation, collaboration, accountability and technology. The collaborative

crowdsourced lawmaking process opens the opportunity for the exercise of a not common

kind of lobbying practice: the open lobby, which is transparent, easy to access, check and

disseminate. But a political crisis and the participant´s calculated strategy of not showing

the own lobby could harm the participatory experience, like verified on the Brazil’s

internet bill of rights´ regulation process.

Keywords: open government – Crowdlaw – public consultation – lobbying – legistics –

Brazil’s internet bill of rights.

Introduction

The objective of this paper is to demonstrate the potential of the use of Crowdlaw

platforms as lobbying spaces and Legistics´ tools for the improvement of the quality of

the legislation that comes from the executive branch. A presentation of the concept of

Open Government will be made relationing it with the Crowdlaw platforms. Next, we

will introduce the Legistics, a science that have the dialogue with the recipients of the

norm as a nuclear value for a quality of legislative communication and consequently of

the legislation. Later, we intend to show that the civic participation at the online legislative

process can be viewed as a lobbying practice. Finally, we intend to show the results of a

case study on the Brazil’s internet bill of rights´ regulation process in which was possible

1Lawyer, legal adviser and government relations specialist. Phd candidate and master in law at the Federal

University of Minas Gerais (UFMG). Post graduate in public policy, government management and public

law. E-mail: flelismoreira@gmail.com

to prove the existence of potential benefits in the use of public consultations and also

some obstacles like the political factor.

CROWDLAW: A OPEN LOBBYING ARENA

Open Government is a dynamic concept that could be looked as an innovative

strategy to change how the state works. Informed by open data2, an open government asks

for help to solve problems using network technology to connect the public to the state.

The result aimed is more effective institutions and a more robust democracy.3

It is important to distinguish e-government and others “e + hyphen + something”

like (e-democracy, e-administration, etc.), of the concept of Open Government. In this

regard, the lessons of Calderón and Lorenzo4 are elucidating, noting that the “ e + hyphen”

is limited to the idea of using technologies to modernize preexisting procedures. There is

no re-thinking of the government’s role, but only an upgrade to the very same processes,

adding pure technology. Thus, the authors note that “e-government does not transform

society, simply makes life easier for citizens.”.

In fact, when dealing with Open Government, much more is sought than to

refashion or refine the Governments to offer utilities. In fact, as highlighted by Calderón

and Lorenzo “when we talk about Open Government we are talking fundamentally about

values, we are talking about rethinking administrations and governments, their procedures

and their dogmas.”

The true sense of Open Government is based on the assumption that

Governments are always in the “beta version”, always in test, but not for its mere passive

subjects, but to collaborators who might interact with the state to solve problems. This is

a much greater goal to promote a cultural change to achieve better results.

The quality of the legislation that comes both from the legislative and the

executive branch is one problem that companies, citizens and all the society daily needs

to deal with. To face this scenario, we have the Legistics, a science that proposes the

adoption of methodologies and techniques for the rationalization of the legislative

production. In the end, what the legists (legistics experts) aims is good laws. To illustrate

just a few questions, which according to the Legistics, should to be addressed by

2 See The open data Hand Book. Available in: http://opendatahandbook.org/guide/en/ 3 NOVECK, Beth Simone. Defining Open Government. Avaliable in: http://tinyurl.com/zujrvvr 4 CALDERÓN, Cesar; LORENZO, Sebastián. 2010. Open Government. Editora Algon Editores: México.

Available in: http://www.scribd.com/doc/30343946/Open- Government-Gobierno-Abierto

legislators during the legal drafting process, we can look at the UK Government´s

diagram bellow:

Source: UK Government5

According to Legistics best practices, the dialogue with the recipients of the legal

burden needs to be considered a priority.6 And to promote this interchange, Crowdlaw

platforms could be nice tools. According to New York University´s Govlab, Crowdlaw,

or open, collaborative crowdsourced lawmaking, is a tech-enabled approach for drafting

legislation, that offers an alternative to the traditional method of policymaking, which

typically occurs behind closed doors and with little input from the people it affects.7

The objective of Crowdlaw is to offer open platforms where anyone can initiate

or contribute to a new legislative initiative. According to Julia Root8, Crowdlaw is an

emerging field that attracts the interest of lawyers, developers, public officials,

researchers and activists. The the goal of Crowdlaw is to create laws a) more effective

because they bring in more diverse ideas; b) more legitimate because they are done with

5 See https://www.gov.uk/guidance/good-law 6 SOARES, Fabiana de Menezes. “Legística e Desenvolvimento: a qualidade da lei no quadro da

otimização de uma melhor legislação.” In: Revista da Faculdade de Direito da UFMG. Belo Horizonte,

nº 50, jan. – jul., 2007, p. 127. 7 See http://www.thegovlab.org/project-Crowdlaw.html 8 ROOT, Julia. #CrowdLaw — On the Verge of Disruptive Change….Designing to Scale Impact. Available

in: http://thegovlab.org/Crowdlaw-on-the-verge-of-disruptive-change-designing-to-scale-impact/.

broader participation; c) and more accountable because the lawmaking process becomes

subject to greater scrutiny.

It is easy to realize that Crowdlaw´s objectives are linked to Open Government´s

core principles: participation, collaboration, accountability and technology.

According to the GovLab, the study of initiatives related to the collective

elaboration of legislation with the assistance of the information and communication

technologies (ICTs) should involve the analysis of the following aspects:

a) Design: How the design of platforms contribute to the success of the

Crowdlawprojects? What works and what does not work?

b) Engagement: how to encourage people to participate?

c) Obstacles: what are the legal aspects, cultural, technological and other

obstacles that the Crowdlaw face?

d) Social media metrics: how to evaluate the performance of the Crowdlaw

projects, especially as regards the effectiveness and gain legitimacy?9

We will follow those indicators in the case study showed bellow, but before that,

it is worth noting that Crowdlaw platforms could be viewed as lobbying arenas.

Lobbying is not a crime. Contrariwise, it is a fundamental right granted by all

the democratic constitutions. Everyone lobby when legally attempt to influence a decision

of a public authority. The good thing is that Crowdlaw platforms opens the opportunity

for the exercise of a not common kind of lobbying practice: the open lobby, which is

transparent, easy to access, check, disseminate and where is also possible to verify what

kind of pressure was exerted and to what extent the defense of interests influenced the

decision-making process.

The Harvard fellow and founder of the OpenGov Foundation10, Mr. Seamus

Kraft, developed a workshop entitled “Learn to Be Your Own Lobbyist (And Love It!)”.11

The objective of the event was to teach students to lobby using a Crowdlaw platform

called Madison.12 Seamus reported the workshop experience with enthusiasm, saying

that:

9 GOVERNANCE LAB. Toward More Inclusive Lawmaking: What We Know & Still Most Need to Know

About Crowdlaw. Available in: http://thegovlab.org/toward-more-inclusive-lawmaking-what-we-know-

still-most-need-to-know-about-crowdlaw/ 10 See https://www.opengovfoundation.org/ 11 HARVARD KENNEDY SCHOOL. Learn to Be Your Own Lobbyist (And Love It!). Available in:

https://ash.harvard.edu/event/learn-be-your-own-lobbyist-and-love-it 12 See https://documents.mymadison.io

Lobbying it's everyone's fundamental right in the United States. But what does

our right to (legally) influence an elected official look like in the Internet Age?

Can technology give more citizens to meaningful voice in government, and

government the meaningful way to truly listen? Put a different way: is it

possible, with tools like our Madison policymaking software online, to put a

single person on par with the powerful political insider? That was the thesis I

tested last week with a diverse group of graduate students at the Harvard

Kennedy School's Ash Center for Democratic Governance and Innovation,

where I am currently the Technology and Democracy Fellow. After two hours

of policy research, testing Madison, and enthusiastically exchanging views on

how governments and staffers really take in and process information, I am even

more confident that the thesis is true. If so, and there is a growing body of

empirical evidence to support it, the future is bright for self-government in the

United States, and to the many countries looking to us for leadership.

Why? Living one's civic life on the Internet is rapidly becoming the normal

and natural for using technology in one's personal and work lives. And there's

a genuine hunger for more online civic engagement. A full 68 percent of

American voters say that they want more and better online information about

their government, and want to use that information to take action, according to

our research. We're clearly past the bright-shiny-new phase. At Harvard,

everyone in the workshop immediately grasped Madison, how it works, and

the power of open policymaking online. It took mere minutes to get to the "Ah

ha!" That enabled us to spend the bulk of our time together not on the concepts

or on the back story, but on specific use cases and opportunities and ways to

make Madison even better. Framing Madison as a personal lobbying tool from

the outset — the both the right and smart way to legislate — was definitely a

new approach for me, but it worked like a charm.13

Mr. Kraft also concluded that “to build better government, we may just need

better lobbyists”.14 Such a placement, which may at first be seem as extremely simplistic,

gains prominence when lobbying is viewed as a practice of political participation in

building more efficient and effective state decisions. On the other hand, talking about

“better lobbyists” may be the same as talking about high-quality civic participation,

broad, conscious and transparent, unrelated to the vicissitudes and crimes that sometimes

end up contaminating the decision-making processes.

Therefore, when choosing online platforms to crowdsource legislation,

governments should seek to mitigate well-known lobbying problems, such as the lack of

transparency and the inequality in obtaining full access to authorities. From this point of

view, we´ve developed the case study reported below.

Brazil’s internet bill of rights´ regulation process and its context

13 KRAFT, Seamus. Do we need a lot more lobbyists? Available in: <http://opengovfoundation.org/do-we-

need-a-lot-more-lobbyists/>. Acesso em 10 de dezembro de 2016. 14 idem

Brazil’s internet bill of rights or Marco Civil da Internet, it´s known as an

innovative legislation, from its online collaborative bias process of writing, until its

content. As Laysmara Edoardo points, “the brazilian legislation for internet is one of the

most progressive in the world, since it guarantees inviolable rights for access, net

neutrality and freedom of communication.15

The inventor of the World Wide Web, Tim Berners-Lee, seems to agree with this

point of view stating that Brazil became the first country “to take the bold step of putting

in place a ‘Bill of Rights’ for the Internet – the Marco Civil da Internet. This visionary

approach has already had global impacts. From Italy to Nigeria, other countries are

seeking to emulate Brazil. And for this, the Internet loves Brazil.”.16

Is out of the scope of this paper an in-depth analysis about the drafting process

of the Marco Civil da Internet or its content. We are going to focus on the Brazilian bill

of rights’ regulation process, which principal task was the draft of a presidential decree.

The regulatory process involves important political elements capable to impact

on the efficiency and the effectiveness of the legislation. In the case of Marco Civil da

Internet, the legislators transferred to the Executive branch a high responsibility to

regulate complex and polemic matters. As result, the Executive was transformed into a

new legislative arena where nuclear points of legislation would be target of the lobbies.

Sensitive topics with great economic and social impact was innocuous without the decree,

and this was an express decision taken by the congress. This is what some political

scientists calls as “blame shifting”.17 It happens when legislators don’t know or are afraid

of the consequences of a bill, which could be the disapproval of the public opinion or,

especially, campaigns donors. So they shift the legislative responsibility to other

institutions.

Another important point that needs to be highlighted is that the Brazilian

congress tend to condemn the participative democracy in the executive branch. In 2014,

President Dilma Rousseff published a decree instituting a “National Policy of Social

Participation”18 which goal was to strengthen and articulate mechanisms of dialogue

15 EDOARDO, Laysmara Carneiro. Legislação para Internet e Combate aos Ciber Crimes: Um Diálogo

Criptografado. In Revista Estudos Legislativos. Porto Alegre, ano 10, n. 10, 2016, p. 207. 16BERNERS-LEE, Tim. An Open Letter to Brazilian Lawmakers. Available in:

https://webfoundation.org/2016/04/uma-carta-aberta-aos-legisladores-brasileiros-an-open-letter-to-

brazilian-lawmakers/ 17 MELO, Marcus André B.C. “As agências regulatórias: gênese, desenho institucional e governança”. In:

ABRUCIO, F. L. e LOUREIRO, M. R. (org.) O Estado numa era de reformas: os Anos FHC. Versão

eletrônica: Brasília, SEGES-MP, 2002. 18 Full decree available in http://www.planalto.gov.br/ccivil_03/_ato2011-2014/2014/decreto/d8243.htm

between the government and the civil society. The decree was faced like bombshell. A

few days before, the newspaper O Estado de s. Paulo released a series of attacks. Terms

such as “Bolivarian Decree”, “risk of parallel power” and “the return of the Soviets” got

wiped out the pages of the journal, under the baton of important legal experts, social

scientists, former Supreme Court ministers, and members of the congress. The

government tried to defend the Decree, seen as a response to the protests of June 2013

and as a possibility to consolidate the social participation in Brazil. But opposition groups

were committed to show the participatory democracy tools as a usurpation of

representative democracy. The climate of dissatisfaction and distrust seemed to

predominate in major media outlets and in the parliament and two days after the 2014

presidential elections, in which Dilma came out victorious, the Lower Chamber of the

Congress voted to repeal the effects of the social participation decree.

This context is relevant because as we are going to see, the Executive Branch

used a Crowdlaw platform to draft the Brazil’s internet bill of rights´ regulatory decree.

According to a former member of the team responsible for the regulation process,19 the

government feared that the National Policy of Social Participation controversy might

affect the regulation of the Marco Civil da Internet, particularly when is taken into

account that public consultations was one of the subjects of Decree condemned by the

members of parliament.

Another fact that needs to be underlined is that the Marco Civil da Internet

regulation process occurred during the same time that the Brazilian congress was

deliberating about the of President Dilma Rouseff impeachment process. This is

important because in that moment, the government were very fragile and under a deep

political crisis. Naturally, this situation affected how the ministries and public servants

behavored with the interested parts and groups. It is no coincidence that the regulatory

decree was published on the last day of Dilma Rouseff in the office.

The Crowdlaw platform

To crowdsource the decree that would be edited, the Ministry of Justice staff

used a free WordPress plugin called “delibera”. This is an important observation to make

clear that we recognize the limits of using tools which were not specifically designed for

a given purpose, in this case, a normative elaboration. The considerations that we shall

19 Interview with Marcelo Chilvarquer, advisor of the secretary of legislative affairs at the Ministry of

Justice. January 6, 2017.

make ahead, should never be interpreted as a critics on the technical capacity of the team

responsible for the regulation of the decree, but rather as a proposal for reflection when

designing Crowdlaw platforms.

Crowdlaw platform main page

The contributions appeared in chronological order and it was not possible to edit

or delete a previous contribution. If someone posted a wrong message, it would be

necessary to post another. This raises at least two problems: the loss of time for those who

would be reading “wrong” texts and the pollution of the platform. As regards this element,

it is important to observe that there was no mechanism of control in the platform to repeal

duplicate comments or extremely long texts. This allowed a company to sent the same

13.559 characters-long message to all the parts of the normative text. We cannot claim to

have been the case, but the pollution of the platforms can be intended to boycott the

participation by polluting the environment interaction, making it not attractive for the

users. Another strategy to wear down the debate is the provision of long and complex

technical arguments. This shows the importance of the role of moderation and

organization of the debate. But in the context that is being analyzed, because of the

political crisis, the ministry of justice feared that any kind of moderation or explicit

interaction in the debate by the Executive branch might be interpreted as an attempt to

drive the participation. According to a former member of the ministry, the team wished

to have a more active role in the regulation process, but the political moment was an

obstacle. Any systematization of topics or reply to participants at the Crowdlaw platform

could be extracted and skewed by a communication vehicle to weak the Government even

more.

On the other hand, we can emphasize a strong positive point of the platform that

is a result of the Ministry of Justice active transparency posture. It was published on the

platform contributions sent by e-mail, letters and other offline documents, which would

be out of the reach of the public scrutiny without this effort. However, we cannot neglect

the fact that lobbying disclosure was partial, notably because of the few information about

the lobby practiced by the other members of the Executive branch, like other ministries

and regulatory agencies. Once more, the political crisis might affected the government

behavior. According to the former member of the Ministry of Justice that we interviewed,

everyone wanted to protect their own skin because of the political moment, and the

government itself was far from having a consensus about the regulation process.

A relevant point to highlight is that according to the interviewed, the Ministry of

Justice team declared on off-line meetings that they were going to consider the oral and

written arguments only if them were posted at the platform. This can be viewed as a

relevant lobbying disclosure action.

Made these brief considerations, on the next topic we´re going to analyze the

participation process at the Crowdlaw platform.

Analysis of the Participation

Excluding the duplicated commentaries, errors and the interaction between

participants, the platform received 1250 contributions to the decree text previously made

available by the Ministry of Justice. Individuals totalizing 763 (61%) suggestions have

sent the largest number of contributions to the text. Secondly, we have the participation

of business associations, with 212 contributions, and in third place civil society

organizations with 149.

According to team member of the Ministry of Justice interviewed, one of the

main objectives targeted by organizers of the public consultation was to repeat the model

adopted in the process of drawing up the Marco Civil da Internet, where the qualification

of the debate was achieved by the confrontation of various arguments. More than

unilateral and monolithic contributions, a dialectical debate was desired, where different

opinions could be confronted and contested by the users themselves.

The data collected reveal that the objective aimed hasn´t been achieved. At first,

it is important to notice that only 10% of the total of comments were made upon a

previously user contribution. Secondly, the interaction between participants from

different groups of interest almost didn´t happened as we can see in the graph:

Interaction between participants

Font: author

The dots represent the users involved in the interaction, which are connected by

a line that takes the color corresponding to the segment of the user who decided to interact.

Green points are individuals, civil society organizations are represented in red and in blue

we have the representatives of the business sector. As we can see, the discussion between

users was concentrated among individuals. At the center of the green interactions, is the

user “Felipe Braga” which interacted with his pairs 57 times or the equivalent to 36% of

the total of interactions. A qualitative analysis of those interactions reveals that this user

was the only troll of the process of consultation.

One of the most significant data that we found is that about 68% of all the

contributions made to the text of the draft decree were posted in the last 48 hours before

the end of the consultation process. Besides, 735 (58.14%) were submitted on the last 24

hours as we can see below:

Participation by date

Source: author

Analyzing the data that we´ve collected, we see that 97.76% of the total of the

contributions made by the business sector were sent on the final day. Taking into account

only the contributions sent by business associations, 99.53% of the total contributions

were submitted in the last hours of the public consultation.

The percentage is also too high at the third sector. 79.16% of the contributions

sent by civil society organizations were made on the last day.

The not rare habit of procrastination and the culture of “leaving it to the last

minute” might have influenced this. But another interpretation is possible and seems more

doable: Perhaps, the participants have acted strategically in order to not reveal their lobby

to others. On the other hand, maybe they felt safer waiting the manifestation of his

adversaries to then, position themselves.

We asked one of the participants in the public consultation20 if the mass sending

of contributions in the last day would not have frustrated, in a way, one of the objectives

20 Interview with Pedro Ramos, former researcher of the InternetLab (http://www.internetlab.org.br).

February 2, 2017

26 9 14 6 6 8 13 14 2 15 1 3 10 14 27 4 7 2 3 16 4 19 26 33 26 14 33 39

126

723

7

0

100

200

300

400

500

600

700

800

27

de

jan

eiro

28

de

jan

eiro

29

de

jan

eiro

30

de

jan

eiro

31

de

jan

eiro

1 d

e f

ever

eir

o

2 d

e f

ever

eir

o

3 d

e f

ever

eir

o

4 d

e f

ever

eir

o

5 d

e f

ever

eir

o

9 d

e f

ever

eir

o

11

de

fev

ere

iro

12

de

fev

ere

iro

13

de

fev

ere

iro

14

de

fev

ere

iro

15

de

fev

ere

iro

16

de

fev

ere

iro

17

de

fev

ere

iro

18

de

fev

ere

iro

19

de

fev

ere

iro

20

de

fev

ere

iro

21

de

fev

ere

iro

22

de

fev

ere

iro

23

de

fev

ere

iro

24

de

fev

ere

iro

25

de

fev

ere

iro

26

de

fev

ere

iro

27

de

fev

ere

iro

28

de

fev

ere

iro

29

de

fev

ere

ir

1 d

e m

arço

Nu

mb

er o

f co

ntr

ibu

itio

ns

Day (2016)

pursued by the Ministry of Justice, which was to promote the public debate between

different interest groups. We got the following reply:

I agree with reading. I think that in a public consultation, it is common this

type of behavior by actors. Every time someone presents their contributions, it

also opens a space for these to be analyzed, unraveled and counter-arguments

are prepared. But if the contributions is all released at the last minute, the actors

would be protected of arguments which could be used to rebut their own

contributions.

By the exposed, one of the points that needs to be considered by governments is

that participants may not be interested in debating, but in defending their own interests

through a strategic performance.

Intensity and concentration of the participation

The data collected from the platform shows that most participants sent 2 to 5

contributions to the text of the draft. This may demonstrate that most users had interests

impacted by several points in the regulatory text.

However, the 28 users who commented over ten times were responsible for

sending 40.48% of total contributions, showing a high concentration of the debate.

As noted by Marco Konopacki21 by including technical issues about the

operation of the internet, the debates like present case lead to a self-selection of the

participants, so users with best financial conditions and with better education tend to be

more frequent on these processes. On the other hand, those with direct interests and strong

viewpoints on the subject tend to engage more. This could help to explain the high

concentration of the debate.

Quality of participation

One of the problems of public consultations is the kind of participation that

escapes from the topic opened to discussion. Often, participants proposes disconnected

contributions that makes the consultation process unproductive.

21 KONOPACKI, Marco Antonio. A autopercepção da influência dos participantes na consulta pública

Online da regulamentação do marco civil da internet e seu papel na Determinação da sua forma participativa

online e off-line.” In “10º Encontro da Associação Brasileira de Ciência Política, Belo Horizonte, 2016.”

available at: <http://tinyurl.com/hjsrec2> Acessed oct. 24. 2017.

Through a qualitative analysis, we read every comment posted on the platform

with the objective of assessing if the contribution had relationship to the article,

paragraph, or section commented out. We´ve found that more than 85% of the

contributions were pertinent. This is one of the indicators of that shows the good quality

of the consultation process. It is important to register, that the Crowdlaw platform didn´t

have a functionality that could allow the users to propose a new legal provision to the

decree. So to suggest, for example, an article or new paragraph, the only choice they had

was to comment on a random device, making their contribution not pertinent to the

selected provision.

Classification of the contributions

Inspired by the classification adopted by Cristiano Faria22, we divided the

contribution in the following categories: a) specific innovative ideas; b) generalist

innovative ideas; c) informative contribution; d) free opinion; e) manifestation of support;

and f) question.

We consider specific innovative ideas, those who propose some kind of change

in the text of the norm objectively. These contributions allow the evaluator to understand

easily what would be the redaction that the user would like to see in the legislation. The

specific innovative ideas aims to add, modify, replace or remove a provision. They come

accompanied by a minimal justification and are very valuable, because it facilitates both

the evaluation of suggestions as the verification, after the process of participation, if the

idea was adopted or not.

The generalists innovative ideas aims at some kind of change. However, it is not

possible to translate the idea in a specific legal redaction. This type of proposal requires

a certain effort from the part of the evaluator, who will need to translate the demand into

a legal text. Naturally, the translation could not correspond to the author´s idea.

Informational contributions are those opinions which brings to the platform new

information that contributes to the debate, without, however, an explicit suggestion of a

legal provision. It is a very desired kind of participation when the public consultation

22 FARIA, Cristiano Ferres Soares de. O parlamento na era da internet: Pode o povo colaborar com o

legislativo na elaboração das leiss? Brasília: Câmara dos Deputados, Edições Câmara, 2012, p. 226 et seq.

aims, in addition to receiving occasional contributions to the text, promote the discussion

of the theme, exploring the educational aspect of the participatory tools.

On the other hand, the free opinions are commentaries that don’t add any value

to the debate, neither helps to solve the problem that the legislation aims. Generally, it

consists on political speeches, vague declarations, protests, emotional outpourings,

impractical suggestions, or arguments without technical substantiation.

The manifestation of support may be useful to the elaboration of norms because

they serve to sustain that the text proposed fits with its author point of view. This type of

contribution may be important instrument of advocacy.

Finally, the questions, as the classification itself suggests, are interrogations

made by the participants in an attempt to get some clarification on some specificity or

omission of proposed text:

We classified all the contributions to check the quality of the Crowdlaw process

we´ve obtained the following results:

Classification of the contributions

Source: author

The data shows a good quality of the participatory process. Despite the high

number of free opinions (29.92%), most of the comments contained specific suggestions

on text the suggested by the Ministry of Justice.

46,32%

15,28%2,72%

29,92%

3,92% 1,84%

specific innovative ideas generalist innovative ideas informative contribution

free opinion manifestation of support question

Asked about the influence of participation on the improvement of the final text,

Marcelo Chilvarquer, one of those responsible for the analysis of the contributions,

highlighted the position of informational asymmetry that the Executive Branch was

facing and said that without the participation, the government would not be able to draw

up an appropriate decree.23 But it wasn’t clear how, exactly, the Crowdlaw experience

contributed to quality of regulatory decree.

The impact of the crowdsourcing on the quality of the legislation approved

In order to obtain data about the analysis of the contributions forwarded via the

Crowdlaw platform, as well as the evolution of the draft decree until the final version, we

needed to appeal to the brazilian law on access to public information. This, because as we

highlighted before, the government didn’t interact with the platform users in order to

prevent political attacks. Besides this, according to Marcelo Chilvarquer, the president

Dilma Rouseff´s impeachment harmed the publication of a report that the team was

intending to publish. So we dint have any information available to the society about how

the contributions were availed.

During our research, we have found that the Ministry of Justice left no records

about the analysis of the contributions submitted by the participants on the Crowdlaw

platform.

We asked Marcelo Chilvarquer, Ministry of Justice´s advisor at the time, about

the analysis of the contributions sent via the platform. According to interviewed, he and

his colleagues selected contributions that they thought that was relevant, and pasted them

into a Google Docs´ text document shared among team members. In addition, they used

the MindTree software for the purpose of identifying keywords and recurring terms. No

final report of the participation was made in order to be sent with final version of the

decree for the analysis of the president of the republic.

This reveals the high level of discretion that the team had on the selection of the

arguments that would be brought to the high authorities, including the president. On the

other hand, it does not allow the assessment of which arguments were considered or not,

and the respective reason. Finally, without the systematization of the data, it is not

possible to gauge if the opening and incentive to participation was merely rhetorical. This

23 Interview with Marcelo Chilvarquer, advisor of the secretary of legislative affairs at the Ministry of

Justice. January 6, 2017.

issue is aggravated when it is verified that the Ministry of Justice created the stage for

participation, but did not interact with the users.

Thus, as mentioned before, the Ministry of Justice digitalized and published at

the Crowdlaw platform documents sent on paper by the lobbies. We have detected that

the Brazilian Internet Steering Committee (CGI.br) – the most important organ of the

Executive branch when the subject is internet – sent a letter indicating that an alternate

text to the decree would be sent to the ministry of justice for evaluation. We asked the

ministry justice for the CGI´s proposal. After an administrative process and several

appeals, the answer was that there was no register of that document in the process.

So, if someone tries to have the access to the documentation offered by lobbies,

the applicant must prove that it exists and indicate under which organ is the information.

Even doing so, as we´ve done, if the authority says that the institution does not have the

document, it is the “public faith” and the dusty principle of presumption of veracity of the

public administration that is going to prevail.

Via the brazilian portal of transparency, we also asked the Presidency of the

Republic, for the integrality of the process related to the regulatory decree that was

published. Our goal was to determine what kind of information was brought to the notice

of the authority which has the power to take the final decision on the regulation of the

Marco Civil da Internet: the president of the republic.

It was found that there was only few quantitative data about how many visitors

the participatory platforms had and how many contributions was received, which leads

us to believe, that in fact, the authority which has the power to decide, was not aware of

the arguments offered by lobbies in the debate, even in a tight synthesis. It is possible to

imagine that this information might have been transmitted orally, but it is impressive the

power of filtering that the members of the Ministry of Justice had. Of course, the president

trusts that her appointed minister would transmit all the relevant information. However,

does the lobbies trust the same? After all, who is the authority that they would need to

persuade? This could change the whole lobbying strategy.

Another point to note is that this case demonstrates that the authorities, in

general, are more concerned with justifying their decisions on the legal perspective, not

worrying to demonstrate the efficiency, efficacy and effectiveness of the legislation. The

documentation forwarded to the presidency of the republic does not contain any document

equivalent to a legislative impact assessment. On the other hand, on the records of the

processes we have several legal documents justifying the legality and constitutionality of

the proposal.

Comparing the text of the draft and the final text it is possible to see that several

changes was made. However, it is impossible to indicate which modifications came from

the contributions sent by the Crowdlaw platform users. So, because of the lack of the

lobbying transparency (which we though that the Crowdlaw platform could mitigate) the

society can’t figure out who influenced the legislative decision. Thus, in spite of having

been encouraged and represented 61% of total contributions, the participation of

individual users (as their own lobbyists) may have been in vain. One of the indications of

this, is that we asked Marcelo Chilvarquer24, member of the team that was responsible for

the analysis of the contributions, if during the analysis of the contributions, the team came

across some “surprise” or any comments sent by a unexpected user, which has contributed

to the drafting of the final version of the decree. The answer was “very few.” Given this,

it is possible to affirm that the participation that really influenced the improvement of the

quality of the final text came from well-known users, considered as references of the

matter under discussion.

According to Janssen and Kies25 on public consultations, citizens want to know

not only if their contributions are being considered, but exactly how, and with what kind

of impact. Regarding the Brazilian bill of rights´ regulation process, that wish might never

be attended.

Conclusions

The Crowdlaw platforms contributes to demystify the lobby by revealing that all

users who offered suggestions to the proposed text in order to influence a public decision

did lobby. At the virtual environment, it was possible to see different lobbies practiced by

several types of lobbyists, who might be not aware that their participation can be

understood as a lobbying practice. This demonstrates that any citizen, even without

payment and with different levels of technical training, can lobby.

24 Interview with Marcelo Chilvarquer, advisor of the secretary of legislative affairs at the Ministry of

Justice. January 6, 2017 25 Apud SAMPAIO, Rafael Cardoso; BRAGATTO Rachel Callai; NICOLÁS Maria Alejandra. Inovadora e

democrática. Mas e aí? Uma análise da primeira fase da consulta online sobre o Marco Civil da Internet. In

Revista Política & Sociedade. Florianópolis. v. 14, n. 29,. Jan./Abr. 2015, p. 132.

The brazilian internet bill of rights´ regulation process analyzed in this paper

seems to be more close to a E-Government experience than an open government case of

success. Although it can be recognized as a Crowdlaw experience, the so-called “public

debate” actually has not been a debate. Firstly, because the majority of participants sent

their contributions in the last few hours of the public consultation, which seems to have

been a calculated strategy to avoid the adversarial lobbies. Secondly, because the

Government made available the platform, but did not interacted with the users, which

demonstrates a low level of public engagement.

A important gain could be the transparency the lobby practiced in the process.

But it was a partial transparency. Lobby is not a private and third sector´s exclusive

practice. Government also do lobby and in the case analyzed, we found a lack of

transparency on the lobby practiced by public institutions.

Thus, it was possible to confirm that Crowdlaw mechanisms have the potential

to increase the transparency and the access to decision-making processes. However, this

potential has not been fully harnessed in the case analyzed.

Lobby can contribute to the reduction of the uncertainties in the decision-making

process. The interview realized with the which at the time was one of the responsables to

evaluate the contributions said that without the participatory experience it would be

impossible to draft an appropriate decree. Therefore, it has not been possible to confirm

if the platform of Crowdlaw contributed to the quality of the decree that was published

because the Ministry of Justice left no records or reports about the process of

contributions analysis.

We enhanced the role of the participation of individuals as “their own lobbyists”,

but the case analyzed reveals that the lobby practiced individually does not seem to be

effective. Despite of the high quality of the debate and the fact that 61% of total

contributions was sent by individual users, the former member of the Ministry of Justice´s

team declared that just a very few of them were adopted. So it is possible to affirm that

the participation that really influenced the improvement of the quality of the final text

came from well-known users, considered as references of the matter under discussion.

The main barrier found to the use of the benefits of Crowdlaw tools was the

political factor, compounded by misinformation surrounding the topic of participatory

democracy. On the other hand, the government was facing a moment of extreme political

fragility, which has a presidential impeachment as result.

Thus, even with the best Crowdlaw platform in the world, a political crisis and

the participant´s calculated strategy of not showing the own lobby could harm the

participatory experience.

References

BERNERS-LEE, Tim. An Open Letter to Brazilian Lawmakers. Available in:

https://webfoundation.org/2016/04/uma-carta-aberta-aos-legisladores-brasileiros-an-

open-letter-to-brazilian-lawmakers/

CALDERÓN, Cesar; LORENZO, Sebastián. 2010. Open Government. Editora Algon

Editores: México. Available in: http://www.scribd.com/doc/30343946/Open-

Government-Gobierno-Abierto.

EDOARDO, Laysmara Carneiro. Legislação para Internet e Combate Aos Ciber Crimes:

Um Diálogo Criptografado. In Revista Estudos Legislativos. Porto Alegre, ano 10, n. 10,

pp. 207-236, 2016.

GOVERNANCE LAB. A growing community of global #CrowdLaw practitioners

Available in: http://thegovlab.org/a-growing-community-of-global-crowdlaw-

practitioners/

______ #Crowdlaw. Available in: http://www.thegovlab.org/project-crowdlaw.html

______ Toward More Inclusive Lawmaking: What We Know & Still Most Need to Know

About Crowdlaw. Available in: http://thegovlab.org/toward-more-inclusive-lawmaking-

what-we-know-still-most-need-to-know-about-crowdlaw/

HARVARD KENNEDY SCHOOL. Learn to Be Your Own Lobbyist (And Love It!).

Available in: https://ash.harvard.edu/event/learn-be-your-own-lobbyist-and-love-it.

SOARES, Fabiana de Menezes. “Legística e Desenvolvimento: a qualidade da lei no

quadro da otimização de uma melhor legislação.” In: Revista da Faculdade de Direito da

UFMG. Belo Horizonte, nº 50, jan. – jul., 2007.

FARIA, Cristiano Ferri Soares de. O parlamento na era da internet: Pode o povo

colaborar com o legislativo na elaboração das leis? Brasília: Câmara dos Deputados,

Edições Câmara, 2012.

KRAFT, Seamus. Do we need a lot more lobbyists? Available in:

<http://opengovfoundation.org/do-we-need-a-lot-more-lobbyists/>. Acesso em 10 de

dezembro de 2016.

MELO, Marcus André B.C. “As agências regulatórias: gênese, desenho institucional e

governança”. In: ABRUCIO, F. L. e LOUREIRO, M. R. (org.) O Estado numa era de

reformas: os Anos FHC. Versão eletrônica: Brasília, SEGES-MP, 2002.

NOVECK, Beth Simone. Defining Open Government. Available in:

http://tinyurl.com/zujrvvr.

OPEN KNOWLEDGE INTERNATIONAL. The open data Hand Book. Available in:

http://opendatahandbook.org/guide/en/

ROOT, Julia. #CrowdLaw — On the Verge of Disruptive Change….Designing to Scale

Impact. Available in: http://thegovlab.org/Crowdlaw-on-the-verge-of-disruptive-change-

designing-to-scale-impact/

SAMPAIO, Rafael Cardoso; BRAGATTO Rachel Callai; NICOLÁS Maria Alejandra.

“Inovadora e democrática. Mas e aí? Uma análise da primeira fase da consulta online

sobre o Marco Civil da Internet.” In Revista Política & Sociedade. Florianópolis. v. 14,

n. 29,. Jan./Abr. 2015.

UNITED KINGDOM. Good Law. Disponível em: <https://www.gov.uk/guidance/good-

law> Acesso em 10 jan. 2017.