Digital regulation challenges for the new Government of Chile

by Digital Rights LAC on March 1, 2023

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In March of this year a new government will take office in Chile. Any digital development policy that it implements must necessarily consider legal variables, by designing regulations that enable sustainable development, beyond buzzwords such as “digital government”, “smart cities”, entrepreneurship, innovation or disruption.

By Francisco Vera

Digital development in a country is not separate from the regulation that supports it. It is not limited to climbing a few positions in the access to technology or e-government charts, but refers more to a holistic approach, where digital technologies are a tool to enable people to maximize their welfare and respect for their rights.

The mere assertion from some sectors that their interests are what best interpret the country (oh, what a coincidence!), can not be accepted without first making a critical reflection on their implications for the development of our rights. Thus, the new government will have to make several regulation decisions on digital issues that will directly affect public interest in various areas.

Privacy and personal data

Chile has a personal data law which from the beginning has been labeled as “tailor made for big companies”. In practice, this means that our personal data is currently in “no man’s land”, due to a weak set of rights and paltry enforcement mechanisms, forcing those who are affected to go to court to gain any effective sanctions for abuses in this area.

Today a reform to this law is being discussed, but so far the project does not include the creation of an agency for the protection of personal data, which would give citizens effective tools to protect themselves from the constant abuses that exist today. However, numerous groups with corporate interests seek to maintain the status quo, on the grounds that they defend the free flow of information and knowledge, and are against all obstacles that a more effective system would create for digital entrepreneurship, along with other justifications that seek to maintain and uphold the current system of abuse.

Copyright and intellectual property

After the reform of 2010, there are still many challenges to be solved. The first and most serious being the Trans-Pacific Partnership negotiations, which would force the country to succumb to the greed of the entertainment industry, which for the protection of its business models, wishes to gain control of the entire content of the network .

On the other hand, there are many problems to be solved in relation to copyright regulation: the ability to use and reuse public information, especially when obtained via transparency, revising the cumbersome system of registration and transfer of copyright which is in force today, along with creating a system that allows works to be used when the owner of the copyright can not be found (also known as orphan works), among other things.

In particular, while anticipating the education reforms that the new government intends to implement, it makes sense to directly propose the adoption of a new IP policy regarding textbooks and educational materials, by pointing towards open resources and employing content licenses that allow free use (and reuse) of publicly funded content.

Internet governance

On international issues, Chile noticeably lacks participation in key discussions on digital rights, which today can mostly be found in multiple forums such as the ICANN, which governs domain names internationally, the IGF (Internet Governance Forum) and similar spaces, whose distinctive features are the participation of multi-stakeholder or stakeholders, which nowadays is key for adopting sustainable, informed and effective public policies in this area.

Chile can no longer afford to miss out on participating, or only attending the ICANN meetings when the implementation of a new domain name, with the extension “.patagonia“, was being discussed. The country has the mission of developing an integral strategy in this area, seeing it as a problem that transcends the technical and encompasses the political by clearly defining, with the participation of all national stakeholders, what role Chile should play in these forums.

As soon as the new Chilean government takes office it will face many challenges, such as deciding whether it attends the summit of Internet regulation that Brazil is holding in April this year, or defining national participation in forums such as the ICANN and the IGF, taking into account that internet regulation is becoming an increasingly strategic issue for countries, especially in light of the NSA surveillance scandals.

Other relevant aspects

Another issue that is likely to form part of the public agenda this year is the discussion on reforms to the cybercrime legislation which is currently in progress, which should ensure a reasonable balance between the prosecution of these crimes and respect for human rights such as privacy and freedom of expression.

In e-government, there have been ongoing discussions on how to implement a software licensing system to prevent reliance on certain suppliers and maximize positive externalities in technology investments, allowing other state (and non-state) bodies to benefit from these advances. The answer to this has always existed, in the form of adopting free software licenses, but it is time to implement this in a more serious and consistent manner.

Finally, to systematize all these efforts, it is necessary to work on a digital rights strategy that transcends public relations and rigorously evaluates the results of previous strategies, seriously considering the interests of the private sector and civil society, in order to create a roadmap that allows us to face the digital future in a joint and sustainable manner.