OPEN GOVERNMENT, LOBBYING AND QUALITY OF LEGISLATION - a case study on the Brazil s internet bill of rights regulation process.

Transcription

1 OPEN GOVERNMENT, LOBBYING AND QUALITY OF LEGISLATION - a case study on the Brazil s internet bill of rights regulation process. Felipe Lélis Moreira 1 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 1 Lawyer, 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. flelismoreira@gmail.com

2 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 data 2, 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 Lorenzo 4 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: 3 NOVECK, Beth Simone. Defining Open Government. Avaliable in: 4 CALDERÓN, Cesar; LORENZO, Sebastián Open Government. Editora Algon Editores: México. Available in: Government-Gobierno-Abierto

3 legislators during the legal drafting process, we can look at the UK Government s diagram bellow: Source: UK Government 5 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 Root 8, 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 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 See 8 ROOT, Julia. #CrowdLaw On the Verge of Disruptive Change.Designing to Scale Impact. Available in:

4 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 Foundation 10, 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: 10 See 11 HARVARD KENNEDY SCHOOL. Learn to Be Your Own Lobbyist (And Love It!). Available in: 12 See

5 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: < Acesso em 10 de dezembro de idem

6 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 BERNERS-LEE, Tim. An Open Letter to Brazilian Lawmakers. Available in: 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, Full decree available in

7 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.

8 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 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

9 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 , 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.

10 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.

11 27 de janeiro 28 de janeiro 29 de janeiro 30 de janeiro 31 de janeiro 1 de fevereiro 2 de fevereiro 3 de fevereiro 4 de fevereiro 5 de fevereiro 9 de fevereiro 11 de fevereiro 12 de fevereiro 13 de fevereiro 14 de fevereiro 15 de fevereiro 16 de fevereiro 17 de fevereiro 18 de fevereiro 19 de fevereiro 20 de fevereiro 21 de fevereiro 22 de fevereiro 23 de fevereiro 24 de fevereiro 25 de fevereiro 26 de fevereiro 27 de fevereiro 28 de fevereiro 29 de fevereir 1 de março Number of contribuitions 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 Day (2016) 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 % 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 consultation 20 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 ( February 2, 2017

12 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 Konopacki 21 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, available at: < Acessed oct

13 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 Faria 22, 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.

14 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 3,92% 1,84% 29,92% 46,32% 2,72% 15,28% specific innovative ideas generalist innovative ideas informative contribution free opinion manifestation of support question 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.

15 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.

16 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

17 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 Chilvarquer 24, 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 Kies 25 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, 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.

18 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.

19 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: CALDERÓN, Cesar; LORENZO, Sebastián Open Government. Editora Algon Editores: México. Available in: 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 , GOVERNANCE LAB. A growing community of global #CrowdLaw practitioners Available in: #Crowdlaw. Available in: Toward More Inclusive Lawmaking: What We Know & Still Most Need to Know About Crowdlaw. Available in: HARVARD KENNEDY SCHOOL. Learn to Be Your Own Lobbyist (And Love It!). Available in: 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.

20 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, KRAFT, Seamus. Do we need a lot more lobbyists? Available in: < Acesso em 10 de dezembro de 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, NOVECK, Beth Simone. Defining Open Government. Available in: OPEN KNOWLEDGE INTERNATIONAL. The open data Hand Book. Available in: ROOT, Julia. #CrowdLaw On the Verge of Disruptive Change.Designing to Scale Impact. Available in: 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 UNITED KINGDOM. Good Law. Disponível em: < Acesso em 10 jan