Italy To Enforce A Global Censorship Legislation?

A contribution to EDRI-GRAM, European Digital Rights Initiative’s newsletter.

The Italian Senate approved – and the Camera dei deputati (Italian “Low Chamber”) is ready to finally pass – draft law 733 named Pacchetto sicurezza – “Security Package”, a series of (supposely) coordinated provisions aimed at improving, whatever that means, police bodies and public prosecutors powers.
Of course, the law wouldn’t have been complete without “taking care” of the Internet, and legislators didn’t lose the chance. Under sect. 50 bis of this forthcoming law, if a public prosecutor has “serious circumstantial evidence” of a criminal online activity (to be specific: inciting crime) he can ask the Minister of Home Affairs to issue a “shut down” order. This order, aimed at ISPs, simply shut down the “concerned” network resource with no trial. ISPs refusal to comply with Minister’s order should be fined with a penalty up to 250 000 Euros.
The provision is clearly flawed from a constitutional standpoint. The basis of every western democracy, indeed, is the separation of power, thus is not legally possible to have such a cross-jurisdiction mess between the public prosecutor (the judiciary power) and a Ministership (the executive power). Furthermore, there would have been a double trial for the same fact, one of which (the Home Affair Ministership one), done without the legal guarantee of a criminal trial (fair process, etc.).
But this is only the tip of the iceberg. Crime-inciting wrongdoing is very difficult to handle, since the border between free-speech and law violation is often blurred (would a website supporting freedom fighter of a country be – per se – inciting to commit crimes?). Furthermore, if ISP’s must prevent access to a network resource located outside their network (abroad, for instance) this would mean that the result will be achieved through deep-packet inspection, or similar, privacy threathning techniques. Thus – with the excuse of “protecting” Italian citizens – the D’Alia amendment (named after the MP that proposed it) is likely to be the first step toward a global censorship system. A Cassinelli amendment (again, from the MP name of its author) that followed the D’Alia one, tried to circumvent the above mentioned problems, but with no real changes in the substance of the matter and the political, net-phobic approach.
Italy had a “sound” tradition in trying to enforce citizen’s global surveillance systems through ISPs and telco operators, adopting every sort of justifications (from copyright, to child pornography, to online gambling and now to crime-inciting actions). Oddly enough, nevertheless, these “good intentions” fell always on innocent citizens’ shoulders, while true criminals stay absolutely free. Or, to put it straight: to (maybe) catch a few criminals, the whole nation network usage will be subjected to “third parties” – namely, ISPs – systematic scrutiny.