Seeing through the smart city narrative: data governance, power relations, and regulatory challenges in Brazil

Jhessica Reia and Lua Fergus Cruz

Introduction

The “smart city” is one of those concepts that simultaneously embodies multi' pie meanings and engenders endless controversies. The flavour of the moment in urban-development circles, more than anything it represents a corporate-driven narrative (Söderström, Paasche and Klauser 2014; Sadowski and Bendor 2019) focused on achieving efficiencies through the use of data and surveillance. It has become the focus of attention within such wide-ranging policy- and decisionmaking spaces as the United Nations’ biannual World Urban Forum (WUF) and the annual Internet Governance Forum (IGF). Its inclusion in such diverse policy spaces reflects the dual nature of what the “smart city” (in all of its definitional complexity) entails, not only as a form of urban infrastructure but also as a specific case of internet governance. As the UN forums widened their topics to include the role of new technologies and the emergent smart city market, so did the IGF, broadening its approach to cover the impacts of smart cities in a myriad of topics related to the community.1

It is important to study the smart city because, far from being the imagined utopia of a few years ago, it is a reality in many cities around the world. Cities are implementing technologies framed in a specific narrative of “smartness” that fails to take into account critical questions of privacy, data governance, and the right to the city. They are also failing to pay sufficient attention to the increased corporatisation of municipal governance entailed by most “smart city” proposals, as we will discuss later. We see smart cities’ incorporation of networks, data, and infrastructure as the physical embodiment of the “last mile” of internet governance, hence the importance of analysing smart cities related to - and beyond - internet governance, in order to understand power relations in the intersection of infrastructure (materialities), policy, and politics. The convergence of these agendas needs more attention.

This chapter offers a much-needed critical, Global South perspective on the smart city ecosystem in Brazil, focused specifically on power relations between state and non-state actors. It assesses the implications of different - or absent -regulatory frameworks for data governance in smart cities. Brazil is an important case study, not only for the leadership role that it has played over the past few decades in global digital policy and the right to the city movement but also for what we can learn from the historical inequalities being exacerbated by technology and the current authoritarian government shaping the (lack of) public debate in the country.

The smart city debate has been active in Brazil, as in many other countries. In 2014, Brazilian specialists presented a series of comments to the preparatory documents that were going to shape the New Urban Agenda (NUA), a multistakeholder agreement designed to serve as a guideline for urban development for the next twenty years; it was signed in Quito in 2016 during the United Nations Conference on Housing and Sustainable Urban Development (HABITAT III).2 Brazilian representatives offered relevant criticism throughout the process, on a variety of topics,3 but one is particularly relevant to the discussion developed in this chapter: the inclusion of the “smart city” concept in the NUA, on its 66th item - as a commitment to adopt it - is seen as problematic by some scholars (Balbim 2017; Reia 2019), confirming the officialisation of a corporate narrative (Söderström, Paasche and Klauser 2014) on urban efficiencies as part of a broader effort to plan the future of our cities.

Prior to the final NUA document signing, an intricate framework of policy units and issue papers were designed by numerous specialists. Issue paper 21, connected to the subject of “Urban Housing and Basic Services,” is dedicated specifically to smart cities (United Nations 2015). Smart cities were presented as “a viable option for the future,” although tellingly privacy, data governance, and data protection are not mentioned once in this document. The neglect of these central issues to public policy is particularly significant in the face of mass surveillance and recurrent data breaches, often involving public-private partnerships, around the world.

During the first two decades of this century, Brazil assumed an essential role in many discussions related to digital culture, free software, free culture, internet governance, copyright, and data protection. The country’s unique pathbreaking role in promoting multistakeholderism in regard to digital issues drew “a path between the tightly regulated European international system, the American business-driven system, and the authoritarian online world of government censorship, surveillance, and control” (Arnaudo 2017, 38). However, a significant proportion of these collective efforts are being sidetracked. Since 2016, Brazilian civil society has seen their channels of communication with the government increasingly closed off, with windows of opportunities to influence government decisions disappearing. As a result, civil society’s energies are being increasingly redirected to damage control (instead of the possibility for agenda setting). The fluid and complex political situation in Brazil reached a turning point during the 2018 elections: Following a controversial campaign fueled by misinformation (Folha de S. Paulo 2019a) and hate speech, Jair Bolsonaro, the far-right candidate, was elected with 55.1 percent of the valid votes, threatening the recent re-democratisation process being built in the country. Although Brazilian civil society had played a significant and positive role in copyright reforms (Reia and Mizukami 2015), the civil rights framework for the internet (Souza, Maciel and Francisco 2010; Papp 2014), and data protection regulation4 in the earlier parts of this century, this

Seeing through the smart city narrative 221 type of engagement with the government about the smart city agenda has become significantly more difficult since the 2018 presidential election that brought Jair Bolsonaro to power. These changes highlight the extent to which progressive Brazilian digital policy is subject to political contestation and can be reversed depending on who or which party is in power.

The increasing relevance of the urban areas and the higher penetration rates of technologies in the country, allied with global demand for sustainability and efficiency, have put the relations between corporate actors pushing this smart city agenda and Brazilian municipalities in the spotlight. In bringing to light the impact of a corporate narrative on the deployment of technological devices in urban spaces, the Brazilian experience offers valuable lessons, not only for the global internet governance community but for everyone concerned about the role of technologies and transnational corporations in shaping the future of our cities.

To better understand the interplay among corporate, governmental, and civil society voices and the extent to which public-interest concerns are being addressed, this chapter was written based on fieldwork conducted between March 2018 and June 2019, with three cities serving as case studies: Sao Paulo, Curitiba, and Rio de Janeiro. All three were designated as the “smartest” cities in Brazil in 2017. They are located in some of the wealthiest regions of the country: the Southeast (Sao Paulo and Rio) and the South (Curitiba).5 We employ a regulatory framework and policy analysis as well as in-depth interviews with government representatives, companies, and researchers; participant observation in three of the largest smart city forums and expos in Brazil; and access to information requests. Overall, we found that the so-called Brazilian smart cities ecosystem - which involves all the actors, services, and products offered within the smart city agenda - is fragmented, hard to grasp, and complex. Most importantly, we found that while Brazil, with its size and historical urban issues, offers a rather attractive market for smart solutions, most of these social issues do not feature in the corporate-dominated discourses of the smart city'.

This chapter is structured in four sections. In the first section, we briefly examine the conceptualisation of the “smart city” and present the definition that guides our work. The second section presents our findings in relation to the institutional, regulatory, and policy context affecting the smart city ecosystem, including topics such as the congressional agenda, public-private partnerships, and data governance. The third section is centred on the industry-focused smart city expos and forums in which technologies are showcased and policies are discussed. Lastly, the fourth section briefly addresses the question of power relations and whose voices are heard in the Brazilian smart city' governance debate before offering some concluding thoughts.

Defining “smartness”

The various conceptualisations of what a smart city should be are all attempts to make sense of the relations between technologies and urban spaces, oftendisregarding a longer history that highlights the role of technology and information in these spaces.6 As Shannon Mattern (2017a) argues, urban intelligence is a relevant aspect of urban planning that has been part of our cities for millennia:

[Urban] intelligence is simultaneously epistemological, technological, and physical; it’s codified in our cities’ laws and civic knowledges and institutions, hard-wired into their cables and protocols, framed in their streets and architectures and patterns of development. The city mediates between these various materialities of intelligence, between the ether and the iron ore. Clay and code, dirt and data intermingle here, and they always have.

(Mattern 2017a, xii)

In another piece, Mattern (2017b) affirms that we see new metaphors to rationalise our cities, and “our current paradigm, the city as computer, appeals because it frames the messiness of urban life as programmable and subject to rational order.” The predominant smart cities narrative - which has gained ground first in the private sector, when “smarter cities” was trademarked by IBM in 2011 (Söderström, Paasche and Klauser 2014, 307), followed by municipal governments, academia, and civil society - is used to describe data-centric initiatives around the world. The discourse promises that big data enables cities to adopt a more sophisticated, real-time understanding of their spaces and people. However, in tenus of data governance, equality, and the right to the city, current smart city initiatives can raise more questions than deliver solutions.

As has been widely noted, there is no single definition of what a “smart city” is or what it is supposed to look like. What exists are fragmented efforts from numerous state and non-state actors to build agendas aligned with their interests amidst complicated relations among technology', innovation, and power dynamics. This chapter draws from critical theory on smart cities (Townsend 2013; Söderström, Paasche and Klauser 2014; Kitchin 2014, 2015; Kitchin, Lauriault and Cardie 2018; Cardullo and Kitchin 2019; Niaros 2016) and reports on the impacts of the indiscriminate adoption of the smart cities agenda (such as Privacy International 2017; Morozov and Bria 2018).

Since there is no consensus on a single definition of a smart city, one of the first challenges of this research project was to come up with a theoretical and conceptual framework for the topic being studied. Based on our analysis of the relevant literature and our fieldwork, we adopt in this chapter the notion of the smart city as a technopolitical agenda (Kurban, Pena-Lopez and Haberer 2017; Winner 1980). This approach does not treat the “smart city” as a consolidated concept, but rather as an ongoing process of transformation of urban spaces based on the articulation among actors, devices/technologies, and politics. The smart city technopolitical agenda is already a reality in Brazil, with a proliferation of rankings, corporate-sponsored expos, controversial legislation, and top-down smart-focused policies driven mostly by the private sector (especially through consulting firms), with few exceptions.

The institutional context and regulatory framework in a time of change

The smart city regulatory and institutional framework presented here involves, mostly, the federal and the municipal levels. Brazilian federalism provides municipalities with political and administrative autonomy (Pires 2005), which allows cities to legislate on matters of local interest. This type of arrangement means that states have residual - nonetheless important - obligations, such as tax collection and metropolitan and intermunicipal policies.

Brazil’s relevance to the global smart city debate is rooted in its experiences in previous landmark digital-policy issues. It assumed a leadership role in policies related to the digitisation in the early 2000s, and it was internationally recognised for its pioneering spirit when it comes to social participation and engagement in formulating, implementing, and evaluating digital policies. According to Arnaudo (2017):

Brazil played a unique role in debating several digital issues, drawing a path between the tightly regulated European international system, the American business-driven system, and the authoritarian online world of government censorship, surveillance, and control. Its model is driven and nurtured by the multistakeholder vision of the Internet Steering Committee, the Civil Rights Framework for the Internet, new democratic online systems, and several other internet regulations - and has become an example to the world. It remains to be seen whether the current government will continue to follow the path taken by the previous one - maintaining and promoting this model internally and internationally - or whether it will tty to develop an alternative policy more in tune with the free market. Initial indicators, such as the government’s decision to emphasise private internet infrastructure development and to withdraw resources from public initiatives, suggest that it will opt for the latter.

(Arnaudo 2017, 38, translated by the authors)

For years, Brazil fostered a vibrant environment for multistakeholder discussions in which civil society had a real voice. Among its best-known accomplishments are the establishment of a multistakeholder Internet Steering Committee (Comité Gestor da Internet, CGI.br), which democratically elects representatives from the government, the corporate sector, the third sector, and the academic community to participate in discussions regarding internet governance with the government. In addition, there’s been the early adoption of Creative Commons licenses by the federal government and for holding online public consultations for the Civil Rights Framework for the Internet (Marco Civil da Internet), the Copyright Law Refonn (Reforma da Lei de Direitos Antorais), and the General Data Protection Law (Lei Gérai de Proteçào de Dados Pessoais, LGDP). For several years, civil society articulated its actions towards a positive digital policy agenda, dealing with challenges along the way and proposing bottom-up policies - to see many of them implemented or at least considered by the federal government. However, the situation has been changing since the controversial impeachment of President Dilma Rousseff in 2016, who was succeeded by Michel Temer and shortly thereafter by Jair Bolsonaro in 2018. Over the last decade, and increasingly since Rousseff’s impeachment, it became more difficult for civil society to influence policy at the federal level, and many actors have had to spend significant amounts of time and resources putting out (metaphorical) fires and simply trying to guarantee fundamental rights. The current disputes around data governance, which we discuss later, are a good example of these changes.

Debates on how to foster a regulatory7 framework in which smart cities can thrive are becoming common in Brazil, and they are supported by development agencies, mayors, and companies. One example of this kind of collective effort, driven mostly by the private sector, is the 2nd Curitiba Commitment (2o Com-promisso de Curitiba),7 a document signed by companies and mayors at the Smart City7 Business America Congress and Expo in 2015 and presented to the UNHABITAT. This document focused on strengthening public-private partnerships within a smart city framework.

It is common for stakeholders to present their perceptions on regulatory changes that are necessary7 to promote a legal framework aligned with their interests through official reports to the government. The strategy7 is to influence the potential review and drafting of current regulations, as we can see in the industry-oriented report “Cidades Inteligentes: Oportunidades e Desafios para o Estimulo ao Setor no Brasil” (“Smart Cities: Opportunities and Challenges for Stimulating the Sector in Brazil”), published in 2018 by the Brazilian Agency for Industrial Development (Agenda Brasileira de Desenvolvimento Industrial, ABDI).S It lists a few regulatory bottlenecks for the development of the smart city agenda, from the perspective of companies and politicians: public procurement rules; the lack of innovation-friendly laws; the regulation concerning land planning and use, the use of airspace in cities, and digital infrastructure (ABDI 2018, 36). This document argues in favour of the need to make legislative changes that would be corporate-friendly, favouring the acquisition and the use of technology7 through public-private partnerships, rather than via other forms of policymaking that could take social participation and safeguarding rights into account.

Framing regulations and public-private relations

Significant parts of the current smart city regulatory framework presented here were discussed and approved during the Workers’ Party government in Brazil (2003-2016). On specifically internet governance topics, Presidents Lula da Silva and Dilma Rousseff organised public consultations and public hearings, opening up the possibility7 to draft bills with great support from civil society7, such as the Civil Rights Framework for the Internet (Marco Civil da Internet) in 2014 and the General Data Protection Law (LGPD) in 2018 (which came into force in 2020). These legislative projects, created in a more collaborative fashion, were

Seeing through the smart city narrative 225 celebrated as milestones by the international community. Several principles and practices incorporated into these legal instruments seemed, at least in the surface, hard to reverse. Nevertheless, since 1 January 2019, at the start of his mandate, Jair Bolsonaro has been rearranging the institutional framework of the federal government, usually in a controversial way, prioritising an overall approach of privatisation and deregulation, combined with a consistent disrespect for democratic institutions such as the Congress and the Supreme Court.

Policymaking infrastructure has also changed drastically under Bolsonaro. Besides a weakened bureaucracy, poorly regulated lobbying, and a heavier reliance on the private sector, the cunent government also has been pursuing an agenda that seeks to tackle so-called gender ideology in domestic and foreign policy (Folha de S. Paulo 2019b) and policies seem as leftist. It is necessary to highlight that although formally considered a democratic country as of December 2020, democracy in Brazil has been weakened and is under threat (Waldron 2019; Neiburg and Thomaz 2020; Pinheiro-Machado and Scalco 2020), with local communities claiming the clear transition to an authoritarian regime is in the offing, characterised by rampant censorship, critical budget cuts, and an ongoing institutional crisis. Bolsonaro has been issuing hundreds of decrees; among the measures taken we can highlight the creation of a national database with citizens’ data, the increasing levels of confidentiality for public data, and the extinction of federal councils featuring civil society participation. A coalition of organisations affirm that “legislating through decrees, undermining the role of the Congress in a democratic regime, is a way of undermining democracy from within” (Rede Brasil Atual 2019).

One of the most notable examples of these tendencies, and one which touches directly on the topic of smart city regulation, is Bolsonaro’s decision to discontinue the Ministry of Cities (Ministerio das Cidades) on his first day in office, as part of a larger move to “undo many of his predecessors’ legacies” (Scruggs 2019). The Ministry of Cities was created to fight urban inequalities and, before it was terminated (alongside other portfolios that were shuffled into “larger bureaucracies” (Scruggs 2019), it was responsible for institutionalising, at the federal level, a regulatory framework and a broader view of the municipalities in the country. Its destruction was heavily criticised: An opinion article in the United Kingdom’s The Guardian newspaper called it the end of an “urbanist dream” (Scruggs 2019). In addition, the president has been financially suffocating regions that publicly oppose his government. Politics around city budgets have always existed, only not with such direct threats. This is a sensitive issue, especially in a country where most of the municipalities cannot thrive without provincial and federal funding, thus forcing them to look for private partnerships. And without the guidance and financial support from the Ministry of Cities, smaller municipalities will face even more challenges during the next years of Bolsonaro’s mandate.

As will be discussed later, one of the main issues pointed out by interviewees in all sectors is the lack of continuity of policies when the federal, state, or municipal government change hands. This non-continuity affects programs that are alreadyrunning and staff who are removed from their positions, interrupting political agendas or even established projects.

The congressional agenda

The Brazilian urban ecosystem within which the smart cities agenda emerged is quite fragmented. It is composed of several actors, often with conflicting interests, which makes it challenging for governments to develop broader regulatory frameworks. One example worth mentioning is the Joint Parliamentary Front in Support of Smart and Human Cities (Frenre Parlamentar Mista em Apoio as Cidades Inteligentes e Humanas), established in November 2016 at the Brazilian National Congress. Parliamentary fronts are formed by parliamentarians from various parties to debate a particular topic of interest to society and last for four years. Political lobbying in Brazil is largely unregulated, a reality that allows Parliamentary Fronts to often end up as bridges between Congress and non-state actors; many Fronts are actually created with significant moral and sometimes indirect financial support from companies and interest groups (Boldrini 2019). Legally, Parliamentary Fronts cannot access public money to fund their activities, as they have a reduced power compared to other congressional structures, such as committees.0 In fact, the only power conferred to them by the regulation of the Chamber of Deputies is to require physical spaces for holding meetings. This situation offers industry and other well-funded groups an opportunity to influence Congress; experts warn that Brazil should properly regulate lobby to scrutinise how expenses, from dinners to research, are paid with money from companies whose stand to gain from what parliamentarians in these fronts decide (Simao 2019).

The Joint Parliamentary' Front in Support of Smart and Human Cities, with 257 members, emerged as an effort to review current legislation, especially on topics concerning the public-private partnership law and possibilities of tax exemptions. All the smart city draft bills (PL 1.650/2015; 2.039/2015; 3.861/2015; 7.406/2014) supported by the Parliamentary Front as of this writing are still before Congress, with no final outcome in sight in the coming months. All of these bills were already at an advanced stage of processing and therefore, according to the Chamber’s internal regulations, were not dismissed at the end of the last legislature (2015-2019). Its four-year mandate expired in January 2019. Despite the reelection of the leader of the Parliamentary' Front in Support of Smart and Human Cities, it was discontinued, and the possibility of creating a New Parliamentary Front to deal with pressing smart cities issues has been under discussion.10 A special subcommittee on smart cities seems to have taken advantage of the expiration of this Parliamentary' Front.11 Even if the initial discussions look promising, it is too early to evaluate their relevance or whether they will follow up on work from the previous front.

The case of the Parliamentary Fronts is but one example of how relations between state actors and the private sector take place, often without regulation, and with some interests hidden from the public eye. Another lesson to be taken

Seeing through the smart city narrative 227 from this example is the ephemerality of certain legislative efforts, subject to specific mandates and multiple actors, making it more difficult to shape the agenda in the long term.

Public-Private Partnerships (PPPs)

In tenns of power relations between state and non-state actors, a considerable amount of effort has been put into the flexibilisation of certain rules by companies willing to provide smart city services to municipal governments. The PPP Law has been one of the main priorities for the private sector when it comes to discussing smart cities in the country. The Brazilian public administration has engaged in PPPs for many years, but this practice was only made subject to specific regulations in 2004-

Brazilian smart cities have relied on PPPs for three primary reasons (Antunes 2017). Tire first is financial sustainability; That most of the country’s municipalities cannot thrive without funding from the federal government and lack a sufficient tax base of their own creates room, or need, for greater private investment and involvement. Tire second reason revolves around the issue of technological integration: If local governments spread their purchases of smart city goods and services across different companies, they might run into interoperability’ issues. Implementing smart city policy and infrastructure via a PPP in contrast, helps to circumvent these issues, because they will be working with a single vendor. Third, meanwhile, is the different speeds at which the public and private sectors operate: While the private sector can move quickly, public bureaucracies are slower; moreover, the government will only pay for the service once it is completed, creating a sense of urgency on the company’s end.

In an interview, Henrique Frota, the executive coordinator of Institute Polis, one of Brazil’s leading organisation conducting public-interest research and advocacy on cities,12 says that he believes the government’s emphasis on PPPs has been

disastrous, since it follows a logic of profitability, conflicting with the purpose of a public policy.... People usually try to frame PPPs through an econometric argument, presenting them as financial and regulatory designs that will cost less for municipalities. However, this design goes beyond the mere economic issue; it detennines who is going to have access to the services being offered, or how the service will be integrated (or not) with the city;

(Online interview, 9 May 2019).

In our research, we observed how PPPs are generally presented as the main instrument for the development of smart cities in Brazil, creating a direct exchange channel between the public and private sectors. Companies often approach mayors and public servants with offers to foster efficiency and smartness, which ends up generating top-down policies that exclude social participation. Without much social participation, this mechanism can lead to technologies and services being hired without a public debate as well as problematic consequences for the city in the long term, such as obsolescence, lack of maintenance, or even a dismissal of what would be considered a priority by its citizens.

Data governance: uncertainty and regulatory challenges

Beyond concerns about processes that lean heavily towards a disproportionate role for business in setting smart city policy, there are also individual policy issues at play. Privacy and data protection are often overlooked elements of smart city policy and the Brazilian data-govemance policy as it will relate to smart cities remains a work in progress. In considering that status of Brazilian data governance, we can see how Brazil’s previously strong record on public interest-focused, multistakeholder-led digital governance is being challenged by the political upheaval affecting the country as a whole.

Generally speaking, Brazil, however, has been making great strides with respect to data governance. Unlike much of the world outside of the European Union, Brazil was well-prepared to strengthen its data-govemance measures following the March 2018 revelations of the Facebook-Cambridge Analytica scandal. The LGPD was approved in 2018 and came into force in 2020; it was the culmination of over a decade of Congressional and public debate and multistakeholder consultations. In the context of this chapter, the LGPD is significant because it has a section exclusively dedicated to the regulation of personal data processing by the government. Since the government is, in theory, responsible for formulating and implementing public policies for smart cities, this section in the law is relevant for data governance and for structuring further smart city initiatives.

Doneda and Mendes (2019, 336) write an engaging analysis of the Brazilian LGDP in a broader context, highlighting how it fills an existing gap:

The General Data Protection Law (LGDP) inaugurates in Brazil a general regime of personal data protection, complementing the Brazilian regulatory framework for an information society, together with the Access to Information Law, the Civil Rights Framework for the Internet, and the Consumer Defense Code [Código de Defesa do Consumidor] - thus modernising the information treatment in Brazil.

(translated by the authors; see also Belli, Barros and Reia [2018] assess the previously existing Brazilian data-govemance framework)

The process that led to the LGDP signed by former President Michel Temer in August 2018 involved years of debate among stakeholders. The section mentioned earlier, on the guidelines for personal data processing by the government, emerged amid a battleground between legislative and executive powers, with various vetoes and overrides (Agencia Senado 2019). By the end of this process, four provisions addressing the guidelines for sharing data among public authorities were discarded, largely because officials argued that sharing data is a recurring and essential practice for the daily operation of the public administration; that is, including city halls that also suffer from queues and bureaucracy and see database integration as a solution.13

In addition, the LGDP includes principles of necessity, purpose, nondiscrimination, and transparency, with respect to data collection, as well as the obligation to adopt appropriate technical and administrative security measures when processing data. This means that data-driven projects should be designed to process as little personal data as possible, taking the necessary measures to perfonn it safely, while establishing clear communication with citizens.

The data protection authority, whose main goal is to safeguard and enforce data protection rules, may request public agents to publish personal data protection impact assessment reports and can suggest the adoption of standards and good practices for personal data processing by the government. Enforcement of these provisions, however, may not be as efficient because the creation of a National Data Protection Authority (Autoridade Nacional de Proteçâo de Dados Pessoais, ANPD) has been weakened by both Tenter’s and Bolsonaro’s vetoes on some key measures. In this new text, the Authority will not be as independent as the first version envisaged. In its first two years, the ANPD will have a transitory' structure being hierarchically subordinate to the cabinet of the presidency, thus endangering its autonomy. However, it may be transformed, at the discretion of the government, into an independent institution after the two-year trial period.

As currently envisioned, the ANPD will consist of a board of directors with five professionals appointed by the president. The Authority should be part of a multistakeholder14 body set up to enforce the law and punish any abuses, such as data leakages, but its legitimacy and representativeness are in danger. In July 2020, less than one year before it was supposed to come into being, its members had yet to be appointed (Alves and Vieira 2020). Experts argue that the technical skills and plurality of ANPD Board members are critical for a successful data governance implementation and that each stakeholder group should be able to nominate its representative, thus ensuring legitimacy and representation of interests. More than 60 institutions, including business and academic associations, civil society' organisations, and experts have issued a manifesto in defense of the composition of the ANPD (Urupá 2019).13

In parallel to the LGDP the Senate approved, in July 2019, the Proposed Amendment to the Constitution (Proposta de Emenda Constitucional, PEC) 17/19, which expressly' adds the right to the protection of personal data to the Brazilian Constitution. The PEC 17/19 is still being debated in the Chamber of Deputies; it proposes the inclusion of personal data protection as a fundamental right in the Constitution guaranteed to Brazilian citizens, a symbolic move to recognise the importance of this matter. More problematically, however, the proposal also reserves the power to legislate on personal data protection and processing exclusively to the federal level in order to avoid fragmentation, as well as it is necessary' to avoid overlapping nonns and legal uncertainty (Cámara dos Depurados 2019). As a result, municipalities and states will not be able to legislate about either the processing or the protection of personal data, thereby centralising and homogenising the efforts at the federal level in order to avoid “fragmentation and pulverisation” of the topic.

On 9 October 2019, Bolsonaro issued the controversial Decree 10.046, which provides regulation for data sharing within the federal public administration, and creates the Citizen Database Register (Cadastra Base do Cidada), centralising several critical databases, such as citizens’ biographical data, social insurance numbers, biometrics, among many others (Mari 2019a, 2019b). This initiative has drawn much criticism, from technical details to its conflicts with the LGPD. A database this large can become a source of concern if used to monitor or repress opponents by an authoritarian government, for instance. Also, this decree was created without further dialogue with civil society, going against a tradition in the country of debating digital culture with specialists and stakeholders.

The (de) centralisation of data governance is a subject that divides privacy advocates: On the one hand, we have those who affirm decentralisation can incentivise data companies to settle in cities where regulation is more lenient; on the other hand, specialists affirm that adherence of certain laws depends on specific regulations at the municipal level, where everyday life takes place and personal data governance is directly impacted. The latter is aligned with the fact that municipalities are already facing regulatory challenges with emergent technologies, such as ride-sharing apps, video monitoring, and live facial recognition. However, by leaving such regulation to the federal government, this situation effectively creates a regulatory7 roadblock when it comes to smart city data governance. Given the current composition and direction of the federal government, progressive changes are unlikely to happen in the short term as it relates to municipal smart city policies.

As the LGDP was just implemented as of this writing (in 2020), it is far too early to make a definitive statement about whether the LGDP and the PEC have the potential to create a progressive data-governance policy for Brazilian smart cities. The LGDP in particular reflects the multistakeholder nature of previous Brazilian digital policymaking. However, its delay - combined with the fact that the implementation of smart city technologies is already happening and the current government’s contempt for engaging civil society - provides more than sufficient reason to temper optimism regarding the potential effectiveness of these new regulations on smart city development.

Local governance: corporate vs. citizen-led smart city policies

Below the federal level, and despite the governance challenges described earlier, some cities are investing in smart city regulation, including master plans, usually partnering with private consulting firms and companies. Three different examples worth highlighting are the municipal plans recently developed in Juazeiro do Norte, in the state of Ceará (a business-led process), and Campinas in Sào Paulo state (government-led with social participation), and the public wi-fi policy in the city' of Sào Paulo (government-led with social participation).

A key example of a corporate actor partnering with a city on smart city governance is that of the SPin - a private consultancy firm specialising in smart cities solutions and PPPs - in the development of Juazeiro do Norte’s Master Plan of Technologies for the Smart City (Plano Diretor de Tecnologías da Cidade Inteligente de Juazeiro do Norte), which was approved by the city council in June 2018 as the Complementary Law 117/2018.16 The plan lists priority areas such as urban mobility, public lighting, and basic sanitation; stipulates strategies for attracting investments; and mentions the importance of improving public services through the use of data-driven technologies. SPin’s representatives and other consulting firms publicly affirmed they expected to create and implement similar plans in other cities in Brazil in the near future.

The Juazeiro-SPin plan focuses on PPPs, innovation, research, and technologies. It has an interesting approach to the smart city governance, such as stipulating various mechanisms for interactions among stakeholders (advisory councils, development funds, and infrastructure sharing) and, in particular, the provision of wi-fi connectivity (a source of valuable data for the service provider) as a municipal public service. However, in a glaring absence, despite the references to big data and the Internet of Things, there is not a single mention of privacy or data protection in the plan, showing it is not a priority for the private partners behind the legislation. Instead, the desire to maximise efficiency permeates the plan. For example, according to Article 28 of the Master Plan, services, such as public security, need to be provided to citizens and tourists and might be optimised through the creation of an Operational Control Centre (Centro de Controle Operacional, CCO). Operation centres usually rely on urban dashboards (Mattern 2015) and control rooms, in which screens allow real-time monitoring of the city. Public security is one of the main selling points of the smart city agenda, normally through video monitoring and live facial recognition technologies. Although such technologies are sold on the basis that they will help fight crime, it is well documented that the use of these kinds of apparatuses can promote segregation (Firmino et al. 2013; Evangelista et al. 2018).

Article 29 of the plan, meanwhile, focuses on funding in ways that create concerns regarding data collection and services. Among the foreseen means to fund smart city solutions are data mining, ads, or even charging fees from the users of these solution-oriented services. These measures reinforce the perception (and the choice to frame) data as a source of revenue for largely corporate gain rather than the broad benefit of the public.

In contrast to Juazeiro, the city of Campinas followed a different path in its attempt to join the smart cities agenda and engage the relevant stakeholders. It recently developed the Strategic Plan Campinas Smart City (Plano Estratégico Campinas Cidade Inteligente, PECCI), which was open for public consultation for almost two months (February and March) in 2019.17 All stakeholders could submit their contributions to the plan by email, a practical attempt to engage all the actors involved in the formulation and implementation of a smart cities’ agenda in the city. While Juazeiro do Norte’s plan lacked any references to data protection, Campinas’ plan, which again was the product of a multistakeholder consultation and not dominated by industry interests, contains measures relating to data protection, privacy, and cybersecurity. As well, Campinas’ plan adopted “open source software that uses standards internationally accepted and validated by other municipalities” (Prefeitura Municipal de Campinas 2019, 38).

These two different cases show how cities in Brazil have a considerable degree of legislative autonomy and freedom to shape their regulatory frameworks. As different outcomes in these two cases suggest, the active participation of stakeholders in the formulation and implementation of smart city public policies can change how data governance is addressed. One of our interviewees, who worked at the Municipal Department of Innovation and Technology (Secretaria Municipal de Inovacdo e Tecnologia, SMIT) of the city of Sao Paulo, explained how the staff teamed up with the Brazilian Institute of Consumer Protection (Institute Brasileiro de Defesa do Consumidor, IDEC), local law firms, and other advocacy groups while creating the public wi-fi policy for the municipality in 2019, called WiFi Livre SP (Interview, Sao Paulo, 2 May 2019).15 This programme provides public, free access to the internet in more than 600 spots, especially in lower-income regions. Importantly, it respects the Civil Rights Framework for the Internet (Marco Civil) and the LGPD, as well as open-data initiatives.

Conferences and policymaking: from transnational corporations to local actors

The earlier section discussed the constraints and opportunities for cities in the face of the current Brazilian regulatory framework and policymaking process, with a prominent presence of corporate power shaping the smart city agenda. This section addresses the incentives for companies providing the smart city' products and services.

The increase in the urban population over the last decades has drawn attention to the many challenges cities of all sizes face daily. Intra-country migration from rural to urban areas, a global challenge, is a relevant phenomenon in Brazil, which saw an increase in these migration trends after the 1970s. Some regions are more urbanised than the others, and Brazil has one of the largest cities in the world: Sao Paulo, whose metropolitan region has around 22 million inhabitants and is characterised as a megacity' by the United Nations (2018).

Brazil’s complexity' - its 5,570 municipalities range in size from two megacities with more than 10 million inhabitants to small towns with fewer than 900 inhabitants each - drive a huge market for techno-solutionism and data-driven initiatives. Nonetheless, as expected with such diversity, there are no one-size-fits-all policies and products that would benefit Brazilian cities. A proper analysis of this multifaceted reality gets even trickier if one considers other variables, such as gender, race, access to the internet and to basic public services.

Brazil’s digital divide remains a significant problem, as evidenced by the country’s stubbornly low internet penetration rates. In 2019, around 71 percent of Brazilian households had access to the internet, according to the Regional Centre for Studies on the Development of the Information Society (Centro Regional de Estu-dos para o Desenvolvimento da Sociedade da Informacdo, Cetic.br). Digital divides remain marked in urban vs. rural areas (75 and 51 percent, respectively), in across regions, and by income - only 55 percent of the population whose monthly income is lower than the minimum wage has internet access at home. Eighty-five percent of the population report having a cellphone (87 percent in urban areas; 69 percent in rural areas), but most of them have a pre-paid, cheaper option (62 percent), with only 33 percent of respondents holding a monthly plan (Cetic.br 2019).

Brazil’s socio-economic gaps and troubling digital divides are an important backdrop against which the country’s smart city industry operates. The business expos and conferences on smart cities in Brazil are crucial elements to understand the power relations among actors, from transnational corporations to local companies, allowing us to grasp the influence of corporate agendas on Brazilian smart city policy and outcomes. They are not only a space to showcase new products; these expos and conferences exist to create markets and demand.

In order to gain a deep understanding of the dynamics among participants, the corporate gatekeeping, and the priorities relating the Brazilian smart cities agenda, we conducted observation research and interviews at three expos and conferences: twice at Smart City Expo Curitiba (2018 and 2019); once at the Smart City Business America Congress and Expo (2018 in Sao Paulo); and once at the Connected Smart Cities (2018 in Sao Paulo). These smart cities events are sponsored mainly by both the private sector and state-owned enterprises. They normally happen once a year; we chose the ones we considered more relevant in terms of attendance, number of sponsors, the presence of mayors, and outcomes, such as smartness rankings.

The Smart City Expo Curitiba usually takes place annually around March at the Expo Bangui, a convention centre. It started in 2018, and it is co-organised by the company iCities, and Fira Barcelona, with Curitiba and Vale do Pinhao as the host city. The central role of companies and planning in organising the SCE Curitiba is remarkable; a representative of one of the organisers affirmed that his company established a partnership with Fira Barcelona in order to organise the Expo in Curitiba and successfully convinced the municipality to host the event (online interview, 30 April 2019).

The 2019 SCE Curitiba was sponsored and partnered by the federal and provincial governments, provincial state-owned enterprises (such as Copel and Sanepar), transnational companies (Cisco, Mastercard, Huawei), and several local companies. The cost of the tickets to access the event was high: The average price of admission to participate in workshops and talks was BRL 1,200 (US$225). This is unaffordable to most when one considers that the minimum wage in Brazil in 2019 was BRL 998 (US$187). The exhibition, however, where companies and other actors had their booths and showcased products and services, was free and open to the public. While anyone in theory can go and experiment with the new smart city technology, in practice the high admission costs means that the opportunity to hear and participate in the talks is out of range for most Brazilians.

In addition to the problem of affordability, when it comes to the workshops and presentations, both years of the Smart City Expo Curitiba lacked diversity in tenns of gender, race, and ethnicity among its speakers, especially in the main sessions.10 While the nuances and complexities of gender identity make it difficult to measure the average participation of women on panels, a general analysis of the programme shows for both years suggests that at least 70 percent of the speakers were men. Our participant observation at the events also revealed a lack of participation by minority' groups, such as LGBTQIA+ groups, people of colour, and Indigenous peoples in discussions that are supposed to shape the future of Brazilian cities. The high registration prices and the inaccessibility of these conferences to broader segments of the Brazilian society result in a lack of diversity of opinions, approaches, and a critical perspective on smartness.

Another issue encountered was the gatekeeping of important discussions, since these expos also offer the opportunity' for meetings between companies and mayors in closed-door, invitation-only-access VIP rooms. As researchers, we did not have access to these meetings, nor did some of the civil society' representatives whom we interviewed for this study. With few exceptions, decision making for smart cities in fora such as these leave segments of civil society out of the discussions and with them the ability to raise concerns in the public interest. According to Henrique Frota from Institute Polis:

In my personal opinion, most of these [smart city] events operate as large markets to sell products and services. Technology corporations dealing with public security', surveillance, apps, from planning to health services, they want to sign contracts with the government. These events are not a priority' for us, since they are shielded from our interventions, or even interventions from civil society'. We are never invited to sit at their table.

(Online interview, 9 May 2019)

The Smart City' Business America Congress and Expo (SCBBr), meanwhile, took place in Sao Paulo in 2018, where its namesake organising institution is based. The SCBBr is the oldest smart cities event featured in this study and has been held in three cities in different regions of the country. The conference name changed slightly over the last few years, and the findings here draw from fieldwork conducted in 2018. The Smart City Business America Institute claims to be a not-for-profit organisation, constituted mostly by the private sector, with a focus on business and entrepreneurship for the smart cities ecosystem. It has branches throughout the Americas, and the Brazilian branch has Microsoft as one of its main sponsors. Its membership consists essentially of private-sector companies interested in the smart city market. The first edition of this expo was held in the city of Recife in 2012 with 250 participants. The expo has enjoyed remarkable growth: in the 2018 edition of the expo one covered in this study, organisers claimed 5,000 attendees. Similar to the lack of diversity' among speakers in their conferences, the board and the technical board lack diversity - of its 31 representatives, only three are not men; most are white.20 The lack of gender diversity was also evident in the panels that we observed, including several all-male panels. In one case, from four simultaneous parallel sessions, only 10 percent of the panelists were not men. The lack of diversity' in these spaces of reflection and decision making reinforce exclusion and reproduce oppressions.

The Sao Paulo event revolved around showcasing products and services to potential buyers - especially mayors - and, since average people had little chance

Seeing through the smart city narrative 235 to meaningfully participate, the weight of social participation or public interest was almost nonexistent. Between the main sponsors and partners, it is worth pointing out the presence of transnational corporations (Microsoft, Cisco, Intel, Engie), the federal government, “technoparks” (spaces dedicated to testing new smart city tech), and several companies (such as SPin). The prices to access the event were even more restrictive than those from Smart City Expo Curitiba; however, access to the exhibition area was not free and open to the public.

One other expo we covered in the course of our research was the annual Connected Smart Cities in Sào Paulo. Like the other expos, Connected Smart Cities promotes workshops and features an exhibition area for actors to showcase their products, services, and solutions. Admission prices were similar to the other two events. The structure of sponsorship of the expo was also similar to the other expos, with transnational corporations (Philips, Engie), ABDI, and domestic companies, including SPin, playing a prominent role. Unlike the other expos, this event offered more spaces for discussion with civil society and featured a call for papers for its workshops and panels. However, like the other expos, gender parity was far from ideal, with 74 percent of speakers featured by the expo being men.

All these events are relevant to comprehend the dynamics between state and non-state actors, as well as visibility and consolidation of the smart city agenda in Brazil. They provide rankings, showcase the technological novelties, create spaces for decision making, and reaffirm the corporate approach to smartness being implemented in our cities. Thousands of people every year attend these conferences, garnering them intense media coverage and fostering a smart city debate while civil society has been gradually excluded. Rodrigo Finnino, professor of Urban Management at PUCPR (Pontifical Catholic University of Paraná), in Curitiba, and a specialist in the relations between technology’ and politics, argues that “Most of these municipal projects are more concerned about efficiency than the right to the city” (online interview, 27 March 2019). He highlights that these conferences are facilitating the intense privatisation of spaces and services that should instead be preserved as a public good. In practice, by effectively excluding civil-society voices from these spaces, these expos and conferences exacerbate a corporate narrative of the smart city, leaving almost no room to reimagine that other notions of smartness and efficiency, more balanced and equal, are possible.

Whose voices are heard in the current smart city agenda?

The regulatory framework focused specifically on the smart city agenda is still incipient in the country'; there are sparse initiatives, and both the Congress and the federal government are still struggling to address the subject. Brazil is likely to have, for now, a fragmented smart city governance, dependent on local efforts and stakeholders, thus creating room for large influence from the corporate narrative about what smartness should look like in a city. A narrow-minded view of technology has the potential to impact several municipal activities, and these impacts should be taken into account when discussing urban governance and smart cities. Top-down policies and regulatory frameworks detached from realitywill not contribute to tackling the challenges faced by Brazilian cities. Historical inequalities are still not being addressed by the current smart city agenda, such as access to housing, education, and sanitation; internet access; and police violence. Marginalised communities are often not benefiting from this corporate narrative, and they are negatively impacted, rarely being heard.

These problems are exacerbated by the trend of smart city technologies usually being implemented first, followed by conflicts, concerns and, only after all of this, regulation. In the absence of adequate regulation, cities have taken a reactive approach to the problems caused by smart city-style projects. In the near future, cities will have to deal with a myriad of regulatory and ethical challenges concerning tech policy and data governance. This future can be glimpsed in a couple of areas. The introduction of electric scooters in Rio and Sao Paulo forced the municipal governments to deal with the devices, accidents, and complaints, mobilising several city departments to control the issues that emerged less than a month after the private companies, Grow and Lime, had come to the respective towns. Specific regulation was created, and the companies decided to leave most of the Brazilian cities (Felix 2019). Another highly relevant example is the deployment of live facial recognition (LFR) technologies in cities across the country. LFR can be seen as the operationalisation of data regulation in Brazil, leading to privacy concerns connected to the smart cities agenda that are no longer new, which were broadly analysed in publications over the last years (Privacy International 2017; Gaffney and Robertson 2018). These issues are probably going to be exacerbated by the Covid-19 pandemic, as cities face the temptation to depend increasingly on surveillance technologies to control outbreaks. The use and anticipated spread of LFR in Brazil suggests why it is so problematic that data governance and privacy issues are often ignored in corporate-driven smart city initiatives, as in Juazeiro.

Hope lies in civil society organisations and qualified public servants whose jobs do not necessarily depend on elections - neither the transition of governments nor mandates. As affirmed by Luciana Pascarelli Santos, coordinator of the Geoinfo Program at the Municipal Department of Urbanism and Licensing (Secretaria Municipal de Urbanismo e Licenciamento, SMUL), it is crucial to bring together citizens to collaborate, since “a public administration is not the mayor defining what to do based on our information, but the population bringing ideas and helping to create solutions” (interview, Sao Paulo, 3 May 2019). Frota, from Institute Polis, believes that

the use of technology in cities does not need to be framed by the smart cities agenda; it needs to be implemented based on the notion of the right to the city and the radicalisation of democracy - questioning who are these technologies serving? And why?

Despite the cunent challenges triggered by the political turmoil and the unsettled convergence of social and economic issues in the country, there are still good lessons in terms of internet (and smart city) governance. The country has much to gain in the change of the federal government and in a broader, more inclusive

Seeing through the smart city narrative 237 approach to the smart city agenda. We need to diversify’ the voices of those who are formulating and implementing smart city policies. The future of our cities cannot be left in the hands of technology corporations and dazzled mayors. Brazilians are leaders not only in internet governance but also in framing the right to the city movement worldwide. Our civil society' and academia have been offering important analyses, studies, empirical data, and advocacy' lessons that would greatly contribute to a better smart city' governance for the country'. It is fundamental to listen to them in the process.

Conclusion

The Brazilian case presented here is another step towards evidence-based research and advocacy on the implementation of the smart cities technopolitical agenda in the Global South. It addresses the urgency in converging agendas of urban planning and internet governance, while it points out the main challenges multistake-holderism is facing over the last years in Brazil. In this complex ecosystem, state and non-state actors navigate amid conflicting interests and an ever-changing regulatory' framework. Once a leader in digital policy, Brazil is confronted with the consequences of Bolsonaro’s election in 2018, in which parts of the Brazilian civil society' saw their priorities shift from a positive agenda to continuous efforts to guarantee fundamental rights. This could, however, shift with a new administration in Brazil.

The country offers a rather attractive market for smart solutions, making the smart city agenda already a reality in many municipalities, with consulting firms and PPPs gaining a central role, and leaving few opportunities for broader social participation. Regulation tries to tackle many emergent issues; however, we often see that technology is usually implemented first, followed by conflicts, concerns, and then regulation. The asynchronous timing among innovation, policy, advocacy, and legislation leaves gaps that have been mostly filled out by the private sector. To make matters worse, the current authoritarian federal government threatens to emphasise disproportionately the private sector and transnational corporations, thus weakening multistakeholderism as well as citizens’ wellbeing.

In Brazil, the current regulatory' framework is still not sufficient to contain most of the problems that appeared with the implementation of the smart city' agenda. It is necessary to discuss the consequences of transferring the management of our cities and the responsibility' of data governance to the private sector - and important decisions should never be made without public consultations or behind closed doors. More than ever, internet governance and urban governance agendas should establish a dialogue and gather specialists, practitioners, and advocates to work together towards an idea of smartness/intelligence that is more aligned with the right to the city. Additionally, there is a crucial need for further research and advocacy around this topic, in order to ensure that the smart city' agenda will not be used as another mechanism that reproduces exclusion and discrimination in the country'.

Acknowledgments

This work was supported by the Open Society Foundations (OSF) and developed at the Center for Technology and Society at FGV Law School (CTS-FGV) in Rio de Janeiro, Brazil, under the name “Discrimination and Data Control in Brazilian Smart Cities.” It was coordinated by Jhessica Reia and Luca Belli, and it had the generous contribution of other researchers: Tatiana Murta and Victor Caldas. We want to thank Pedro A.R Francisco, Will Straw, and Filipa Pajevic for their significant inputs to the final draft of this chapter.

Notes

  • 1 The Internet Governance Forum had its firsts workshops addressing smart cities in 2016. There were three in 2016, two in 2017, one in 2018, and one in 2019.
  • 2 See http://lrabitat3.org/the-new-urban-agenda/.
  • 3 See HABITAT III. Comments from Brazil to the issue papers that will infonn the discussions of the UN Habitat III Conference. Available at: http://habitat3.org/wp-content/uploads/BRASIL-Comments-on-Habitat-III-Issue-Papers.pdf.
  • 4 See, for example, Observatorio da Privacidade [Privacy Observatory] (https:// observatorioprivacidade.com.br/memorias/) and the report published by Internet-Lab’s team in 2016, available at: www.intemetlab.org.br/wp-content/uploads/2016/05/ reporta_apl_dados_pessoais_final.pdf.
  • 5 While these three cities are particular cases that do not reflect the whole country in its entirety, they are significant examples of global cities that embraced a specific agenda on how “smartness” should operate and be intertwined in their infrastructures.
  • 6 See, for example, discussions around “informational city” (Castells 1989); “ubicomp” (Weiser 1996); “media city” (McQuire 2008); Communicative City (Gumpert and Drucker 2008); among others.
  • 7 See www.curitiba.pr.gov.br/noticias/prefeitos-assinam-compromisso-de-curitiba-com-intencoes-para-cidades-inteligentes/36488.
  • 8 The Brazilian Agency for Industrial Development is a federal government agency whose mission is to promote the implementation of industrial policies.
  • 9 Ato da Mesa n° 69,2005, available at: https://www2.camara.leg.br/legin/int/atomes/2005/ atodamesa-69-10-novembro-2005-539350-publicacaooriginal-37793-cd-mesa.html.
  • 10 See www.diariodepetropolis.com.br/integra/petropolis-presente-no-smart-city-day-166775.
  • 11 See https://www2.camara.leg.br/atividade-legislativa/comissoes/comissoes-permanentes/ cdu/conheca-a-comissao/subcomissoes.
  • 12 See https://polis.org.br/.
  • 13 See www.planalto.gov.br/ccivil_03/_ato2015 -2018/2018/Msg/VEP/VEP-451 .htm.
  • 14 The Authority should have a consultative council fonned by state and non-state actors, such as representatives of the Senate, Congress, Public Prosecutor's Office, Internet Steering Committee, civil society, academia, unions, and the private sector.
  • 15 On October 15, 2020, President Bolsonaro nominated the five members of the ANPD. As feared by different stakeholders, three of the nominees are members of the Armed Forces. The militarisation of the ANPD is a problem, as it might not have the public interest, multistakeholder approach desired by civil society: and the private sector.
  • 16 For the complete material, see www.juazeiro.ce.gov.br/Imprensa/Diario-Oficial/ Num4762-14062018/.
  • 17 The document made available for public consultation can be found here: www. campinas.sp.gov.br/arquivos/desenvolvimento-economico/pecc-2019-2029.pdf.
  • 18 For further information, see https://wifilivTe.sp.gov.br/.
  • 19 See, for example, the reports from 2018 (www.smaitcityexpocuritiba.com/Relatorio_ SCECWB18.pdf) and 2019 (www.smartcityexpocuritiba.com/Report_SCECWB 19.pdf).
  • 20 More information can be found here: https://web.archive.org/web/20190108192233/ http://smartcitybusiness.com.br/home/conselho/.

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