Not everything in the world is just black and white. And this applies also to the new initiative for the “Law for the Promotion and Development of the National Broadband Network of Telecommunication Services”. There are good aspects, but there are also others that leak of profoundness and some should be criticized and modified in the interest of the Nicaraguan people.
Ultimately, this has generated a public controversy and interesting debate over this initiative. The leaked document leaves quite some questions open and can be even confusing, which makes it's interpretation not very trivial. Nevertheless it is worth to know the different aspects of the proposal in order to promote political interference of important parts of the law. Let's be active citizens which critics are constructive. A general rejection does not contribute much in the process.
To be able to understand the law better, let's focus on some core ideas of the proposal:
The proposal expects to claim “the privacy and inviolability of the user's communications" [Article 24] and “develop a culture to protect the rights and duties of clients and users.” [Article 3,6].
Both initiatives are nobles and their vision are in favour of the population. Nevertheless, the law contradicts itself in other articles. For example, it establishes that the Internet providers are “obliged to present all the information” which the government entity TELCOR requires [articles 12 and 14].
This is alarming. It is a blank cheque for abuse, because those requests could include revelations of IP addresses and their users in any time. We would become transparent users of the Internet and every click could be observed and analyzed.
The initiative has the ambition to take the broadband service to the whole Nicaraguan population [articles 1 and 7] and “promote the reduction of the digital divide” [article 3,9]. This implies, as it has always been, the government gives concessions to companies which permits them to participate in the market of telecommunications [article 5], and this Internet providers interact based on free competition [article 16].
In various aspects the law claims to move central parts from the central infrastructure from private companies over to government's hands. This allows a regulation in favour of the consumers, but is also leverages the surveillance of the population. It is worth mentioning that just because the infrastructure is in hands of the private sector does not guarantee that the state powers would not spy on us. Almost all intelligence services of all countries make use of the so called “ports for legal interception”. Why should this be different in Nicaragua?
It is not a novelty that telecommunication companies like to get the most out of their clients. This is the reason why they don't voluntarily share their fiber optic cables with other companies and avoid a free competition. This results in every company putting their very own cable in the same trenches and the big providers convert themselves into quasi-monopolies. This causes unnecessary costs, which at the end pays the final user. We can use the analogy to roads: It is in our interest that roads are public, if they weren't, then we would have to pay for transit on it or we could construct a new road on the side. That is why a regulation of the existing infrastructure and the implementation of a state infrastructure generally benefits the users and it is common practice in many countries.
National Broadband Network
It is planned to create a “National Broadband Network” [article 31] which is going to provide services to state entities, including the military, but also hospitals and schools [article 6].
This state owned company would be also one of the many Internet providers, oriented to public institutions, but maybe in the future also for general consumers. In this case those government entities would not have to contract foreign companies. And if we compare this model with the public company ICE in Costa Rica, it can be expected a state company could offer competitive rates and benefit this way the consumers. Apparently the fear of the big telecommunication companies and the president of the Superior Council of the Private Company (COSEP), which have spoken out against the National Broadband Network, consists in the decreasing profit margins.
Internet Exchange Point
It is proposed to create and operate an national and international Internet Exchange Point (IXP) through the state's regulation entity for telecommunication (TELCOR) [article 17] to assure a fair exchange of data without any different costs for any of the providers [articles 18]. Although this exchange does not claim to be the only connection point which connects Nicaragua with the rest of the world, always there can and will exist others.
These neutral exchange points are important and exists in almost all countries. If there is not national point for exchange, then all the information has to be redirected through another country. This is not logical neither efficient to take a longer way, forwarding all data outside of Nicaragua in order to connect national providers. And on the cables in other countries intelligence organizations are waiting to spy on our data and have not even legal restrictions for interference.
I very much agree with Norman García's statement in his interview: A neutral Internet exchange point (IXP) should be controlled by a multisectoral institution, consisting of the government (TELCOR), the providers (Nicaraguan Internet Association, AIN) and representatives of the civil society (consumer networks and human rights organizations). This would allow a balance of power to avoid eventual abuses of the central communication infrastructure in different ways.
Until now, the Internet providers have been deciding and negotiating if they wanted to be connected between each other and under what conditions. This situation has caused clear disadvantages for the small providers, as the quasi-monopolies do not allow them to connect or could charge when those want to connect to their clients. It is an important step that this initiative proposes a regulation which guarantees equal chances to all providers.
One of the bid advantages of this law is to establish a mechanism for the status to control maximum rates for Internet services [article 10,3]. The private sector has failed in offering justifiable rates, resulting that Nicaraguan has one of the most elevated costs for this kind of communication in comparison with other countries in Central America. A regulation is necessary and it would be very positive if this in reality lead to “encourage the reduction of the costs for the use of broadband services” [article 3,5].
Another measure is to introduce a new tax if 1.5% over Internet services [article 13]. And, to encourage people to buy new equipment to access the Internet, the import taxes for such devices (like tablets, smart phones, Internet routers) will be cut into half for the next five years [article 50]. Which are, according to the Nicaraguan law 822 on fiscal agreements these types of products are subject to 15% to 20% of tax payment, which would be half, 7.5% or 10% respectively.
The law initiative proposes the state institution TELCOR to manage Nicaragua's country code top level domains (ccTLD) [article 25]. Since the year 1988 the Universidad Nacional de Ingeniería (UNI) has been in charge of this task. Checking the international status-quo is equally common for a government instance to regulate country domains as it is for a university or even in some cases, companies. Obviously the state should create mechanisms in the law to avoid an eventual censorship or abuse of power in the future. No matter which instance is in charge. This is not mentioned at all in the law and would be very necessary!
Good part of the proposal is dedicated to the noble intention to “guarantee the provision of the services with strict adherence to the relative disposition of the protection and conservation of the environment” [article 3,8]. Nevertheless, the law does not show a lot of ambitions, as it only claims the minimum level of protection. It establishes that only the “up-to-date and (by the industry) internationally accepted practices and techniques for such telecommunication services” should be applied[article 48].
But the industry does not have the necessary techniques to protect the environment. ¿should this then be enough to protect our planet? Congratulations for mentioning the environment, but it is sad that it is not seriously taken into account.
Analyzing the proposal all together, it looks like the law would be beneficial for the end users – the consumers. And it is not surprising that the telecommunication companies are crying because they would loose part of their control and possibilities of economical exploitation over the Internet infrastructure. But the citizens, instead of paying attention to the complaints of these companies, which have only demonstrated that their interest is oriented to the profits, should rather demand loudly their rights and defend a uncontrolled Internet, mechanisms for the protection of the people's privacy and a real commitment to amplify the broadband network to a national level, include the principles of Net Neutrality and assure implementations that protect the environment.
- Sixth article article in my column "Brave new digital world" (Un mundo digital feliz) in the newspaper Confidencial.com.ni, where it has been published in Spanish language.
- Photo by Fabienne Serriere
- Special thanks to Cinthia Membreño