Not everything in the world is black and white. And this applies to the new initiative for the “Law for the Promotion and Development of the National Broadband Network of Telecommunication Services” as well. There are good aspects, but there are also others that lack depth and should be criticised and revised in the interest of the Nicaraguan people.

Recently, this has generated public controversy and an interesting debate around the initiative. The leaked document leaves quite a few questions open and can be confusing, which makes its interpretation far from straightforward. Nevertheless, it is worth examining the different aspects of the proposal in order to advocate for meaningful engagement with the important parts of the law. Let’s be active citizens with constructive criticism — a blanket rejection does not contribute much to the process.

To be able to understand the law better, let’s focus on some core ideas of the proposal:

Privacy

The proposal seeks to guarantee “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 noble and their vision is 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 at any time. We would become transparent users of the Internet and every click could be observed and analyzed.

Infrastructure

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 has always been the case, that the government gives concessions to companies, which permit them to participate in the telecommunications market [article 5], and that these Internet providers interact based on free competition [article 16].

In various aspects the law aims to move central parts of the infrastructure from private companies into the government’s hands. This allows regulation in favour of consumers, but it also facilitates the surveillance of the population. It is worth mentioning that having the infrastructure in the 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?

Private infrastructure

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 free competition. This results in every company putting their very own cable in the same trenches and the big providers turning into quasi-monopolies. This causes unnecessary costs, which in the end are paid by the end user. We can use the analogy of roads: it is in our interest that roads are public; if they weren’t, we would have to pay to use them or construct a new road alongside. That is why regulating the existing infrastructure and implementing a state infrastructure generally benefits the users and 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 also be one of the many Internet providers, oriented towards public institutions, but maybe in the future also towards 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 that a state company could offer competitive rates and thus benefit 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, is about decreasing profit margins.

Internet Exchange Point

It is proposed to create and operate a national and international Internet Exchange Point (IXP) through the state’s regulatory entity for telecommunications (TELCOR) [article 17] to ensure a fair exchange of data without any different costs for any of the providers [article 18]. This exchange does not claim to be the only connection point which connects Nicaragua with the rest of the world; others can and always will exist.

These neutral exchange points are important and exist in almost all countries. Without a national exchange point, all traffic must be routed through another country. This is neither logical nor efficient, as it means forwarding all data outside Nicaragua just to connect national providers. And on cables in other countries, intelligence agencies are ready to spy on our data without even facing legal restrictions for doing so.

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 possible abuses of the central communication infrastructure in different ways.

Until now, the Internet providers have been deciding and negotiating whether they wanted to connect with 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 them when they want to connect to their clients. It is an important step that this initiative proposes a regulation which guarantees equal opportunities to all providers.

Costs

One of the big advantages of this law is to establish a mechanism for the state to control maximum rates for Internet services [article 10,3]. The private sector has failed to offer justifiable rates, resulting in Nicaragua having some of the highest costs for this type of communication compared to other Central American countries. A regulation is necessary and it would be very positive if this actually served to “encourage the reduction of the costs for the use of broadband services” [article 3,5].

Another measure is to introduce a new tax of 1.5% on 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 in half for the next five years [article 50]. According to the Nicaraguan law 822 on fiscal agreements, these types of products are subject to 15% to 20% tax, which would be halved to 7.5% or 10% respectively.

Nicaraguan Domains

The law initiative proposes that the state institution TELCOR 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. Looking at the international status quo, it is as common for a government institution to regulate country domains as it is for a university or, in some cases, even companies. Obviously the state should create mechanisms in the law to avoid possible censorship or abuse of power in the future. No matter which institution is in charge. This is not mentioned at all in the law and would be very necessary!

Environment conservation

A 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 much ambition, 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 on mentioning the environment, but it is sad that it is not seriously taken into account.

Conclusion

Taking the proposal as a whole, the law appears to be beneficial for end users — the consumers. It is no surprise that the telecommunications companies are complaining, as they stand to lose part of their control and economic exploitation of the Internet infrastructure. But citizens, rather than paying attention to the complaints of companies that have only ever demonstrated profit-oriented interests, should loudly demand their rights: an unconstrained Internet, mechanisms to protect people’s privacy, a genuine commitment to expanding the broadband network nationally, the inclusion of Net Neutrality principles, and implementations that protect the environment.

• Photo by Fabienne Serriere