Bulletin n. 2/2008
September 2008
CONTENTS
  • Section A) The theory and practise of the federal states and multi-level systems of government
  • Section B) Global governance and international organizations
  • Section C) Regional integration processes
  • Section D) Federalism as a political idea
    • Rodotà Stefano
    A Bill of Rights for the Internet Universe
    in Federalist Debate (The) , Year XXI, n. 1, March ,  2008 ,  15-17
    Almost at the same time as a UN commission in New York City was passing the proposal for a moratorium on the use of the death penalty with an historic vote, in Rio de Janeiro the representative of the same United Nations was closing the big Internet Governance Forum stating that the many problems to be faced in this network require an Internet Bill of Rights. These two events, which may look unrelated and qualitatively very distant can be placed side by side for three reasons. In both cases, the importance of a global policy for rights has leapt forward. In both cases, we are not in the presence of a final point of arrival, but of a process requiring ingenuity and political determination. In both cases, the outcome has been made possible by a far-sighted Italian initiative. As far as the death penalty is concerned, it was a matter of honoring a cultural primogeniture, almost a historical duty, in the name of Cesare Beccaria and Tuscany, the first State in the world to abolish the death penalty, "convenient only to barbarian people", as the Grand-Duke Pietro Leopoldo declared in 1786! The Internet situation is quite different, as Italy can certainly not be considered a leading country in the field of scientific and technological innovation. And yet this is precisely where a movement started from two years ago, that has progressively involved ever wider sectors everywhere, thus demonstrating that a good culture is necessary to a good policy. Which policy? The final outcome in Rio was possible also because a joint declaration was made one day before by the Brazilian and the Italian governments suggesting the Internet Bill of Rights as the instrument for guaranteeing freedom and rights in the widest public space that mankind has ever known. However, this very significant development now requires adequate capability of taking action. In the discussions leading to the declaration, the Brazilian Minister of Culture, Gilberto Gil, has explicitly mentioned the Charter of Fundamental Rights of the European Union. We are faced with a situation that is becoming paradoxical. Still underestimated and opposed by some in Europe, the Charter is becoming a constant reference for those who are committed to the establishment of a new system of rights protection worldwide; so much so that US scholars speak of a "European dream" that is replacing their "American dream". It is time, then, for the European Union to be fully aware of its force and responsibility towards the entire "human community", as explicitly written in the Preamble of the Charter of Rights. Precisely because we are aware of the limits of Europe's influence, its political future is ever more clearly connected to its being able to be the protagonist in this planetary "struggle for rights". In this perspective, the Internet Bill of Rights provides a valuable opportunity. Just because an unexpected support has come from the UN, the newly-started process must be made strong and concrete. I would list the first stages of its development. The Italo-Brazilian declaration is open to adhesion from other countries. This is not an easy operation. But the Italian Minister of Foreign Affairs has proved to be very clever in guiding the process towards the moratorium on the death penalty, so that one may believe that he will not grasp this new opportunity with indifference. An easier course of action would be, similarly to what happened for the moratorium, to work for turning the Italian initiative into a more general stand of the European Parliament. In this case, however, a more general question arises. While the Charter of Fundamental Rights is going to become legally binding, and is looked at as a model, the European Commission is taking initiatives that, even with the use of questionable procedural expedients, greatly restrict the protection of fundamental rights; one example concerns the collection and storage of personal data. It is necessary to get out of such an institutional schizophrenia, where grand proclamations on rights are too often contradicted by real and significant restrictions, dangerous for democracy and technically unnecessary or disproportionate. A third path of action concerns the United Nations itself. Not long ago Google, aware of the necessity to ensure better personal data protection, proposed to institute a "Global Privacy Counsel" at the UN. This suggestion was taken up because it gives a concrete opportunity for starting a reflection over the UN presence in that sector in the future. But, above all, this proposal is posing a more general problem. In the course of the past year we have witnessed a vigorous activism in the economic world. In addition to Google's proposal, there was a joint initiative by Microsoft, Google, Yahoo! and Vodafone, which announced the publication by the end of the year of a Chart for the protection of freedom of expression on the Internet. In July, Microsoft presented its Privacy Principles. But is it possible to leave the protection of fundamental rights on the Internet to the initiative of private subjects only, who will tend to provide just the guarantees compatible with their interests and who, in the lack of other initiatives, will appear as the only "institutions" capable to act? Can we accept a privatization of the Internet governance or is it indispensable to have a plurality of actors at the most various levels discuss and work out common rules, according to a model defined, exactly, as multi-stakeholder and multi-level? The Internet Bill of Rights is not conceived by those who have envisaged and are promoting it, as a transposition into the Internet sphere of the traditional logic of international conventions. The choice of the old formula of the Bill of Rights has a symbolic force, it underlines that the aim is not to restrict freedom on the web but, on the contrary, to maintain the conditions for letting it continue to prosper. To do so, "constitutional" guarantees are required. Let us not forget that Amnesty International has denounced the increase of cases of censure, "a virus that can change Internet's nature, making it unrecognizable" unless adequate measures are taken. But, in conformity with Internet's nature, the recognition of principles and rights cannot fall from the sky. It must be the result of a process, of a large participation of a plurality of subjects, who have already taken the form of "dynamic coalitions", groups of different kind spontaneously born on the web; they have found in Rio the first opportunity to exchange ideas, work together, have a direct influence on decisions. In the course of such a process, it will be possible to achieve partial results, combine self-regulation codes with other forms of discipline, establish common regulations for particular world areas, as once again shown by the European Union, the world region where the protection of rights is more advanced. Traditional objections - who is the legislator? which judge will enforce the proclaimed rights? - belong to the past, as they do not take into account that "the avalanche of human rights is sweeping away the last trenches of State sovereignty", as Antonio Cassese quite rightly wrote, commenting the vote on the death penalty. At the very moment the Internet Bill's progress accelerates, a change will have occurred already. A new cultural model, originating from the awareness that the Internet is a world with no boundaries, will start to be visible. A model that will further the circulation of ideas and could immediately constitute a reference for the "global community of courts", the crowd of judges who, in the most diverse systems, are currently faced with the problems posed by the scientific and technological innovation; it will thus give voice to those fundamental rights that represent today the only power that can be opposed to the force of economic interests. It is no Utopia, nor an escape forward. Even today, one day after the Rio Conference, many people are already at work and the program for the coming months is clear: inventory of the "dynamic coalitions" and creation of a platform allowing dialogue and cooperation; inventory of the many existing documents, to find which principles and rights could be the bedrock of the Internet Bill of Rights (a list is already in the Italo-Brazilian declaration); drafting of a first blueprint to be discussed on the web. The sowing was good. But the harvest will come if fervent spirits support future actions.
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