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.