Global Campaign Manager for the Web We Want Renata Avila talks to Italian journalist Stefania Maurizi from L’Espresso magazine about Italy’s Internet Bill of Rights, published this week. This interview originally appeared on L’Espresso.
The Web We Want advocacy initiative helped to pass the Marco Civil da Internet in Brazil, making it the world’s first “Internet Constitution”. Today, 15 months after the Brazilian initiative, Italy gets its own Internet Bill of Rights. What do you think of the Italian initiative?
Overall, there is a lot to like about Italy’s Internet Bill of Rights: it recognises the key role of the Internet in a democratic society, protects net neutrality, includes provisions on open data and recognises access to the Internet as a right.
However, the bill still falls short of our hopes in a few areas. For example privacy can still be violated “in accordance with the law”. For instance, the UK and France have just legalised forms of aggressive massive surveillance. If Italy were to do likewise, the principle of privacy would be overruled.
It also fails to adequately protect anonymity and encryption, and the clauses on the retention of personal data by companies are vague. So how much this Bill protects citizens privacy in practice largely depends on other laws, and what kinds of checks are in place for overreach by security and intelligence agencies. This will depend on politics and the views of elected officials, so the bill does not secure these rights for the long-term. We need to have a conversation about privacy so we can create stronger, clearer principles.
Compared to the Marco Civil process, the Italian bill is different. Marco Civil is currently a “framework law”. It is a binding instrument setting out principles but also has a mandate for the government to pass laws so that the principles are translated into practice. As of now, the implementation and enforcement of the Italian Bill of Rights remains unclear.
What are the most important points of the Italian Internet Bill of Rights in your opinion?
The preamble says “The Internet must be treated as a global resource and must satisfy the criterion of universality” which for us is central to everything the Web is really about: being a universal, open public good to be used by all of the people, all of the time.
The bill also establishes access to the Internet as a right and guarantees that all human rights apply online – this is absolutely key. Furthermore, protection of net neutrality in combination with access to the Internet as a right means that all of the web will also be accessible to all of Italy’s citizens, all of the time.
We should also highlight the participatory process used to draft the laws. While the number of citizens engaged as a percentage of the Italian population was small, it was significant in that many experts had the chance to input into the bill directly. This is definitely a step in the right direction. As we have seen in Brazil and elsewhere, an active, engaged civil society is key to achieving long term results. We need to do even more of this so government benefit from the knowledge of experts in policy-making.
The Italian Bill of Rights establishes that “data may be collected and processed only with the informed consent of the data subject or on the basis of another legitimate motivation enshrined in law. Consent shall in principle be revocable. With regard to the processing of sensitive data, the law may establish that the consent of the data subject must be accompanied by a specific authorisation. Consent does not constitute a legal basis for the processing of data when there is a significant imbalance of power between the data subject and the data processor“. We learned from the Edward Snowden and NSA files published by WikiLeaks that the NSA conducts mass surveillance programs gathering billions and billions of data without any consent and working in close collaboration with national intelligence services. Do you think that the Brazilian and the Italian Bill of Rights will have any impact whatsoever on the NSA mass surveillance activities? If so, what kind of impact?
The most important thing this bill can do is act as a tool to educate people about their rights. Once awareness is raised and citizens have this document to point to, they can hold the government to account and demand their are respected.
Italian citizens can use the bill to fight against abuses of their rights. Look at the global trend toward increased surveillance, the recent increases in surveillance programmes in France and the UK, right here in the EU. Look at how the Italian government has provided a permissive environment for companies like Hacking Team whose software is used to abuse rights. The list sadly goes on and beyond what the Snowden files have revealed. We have to face the truth: citizens have lost ground.
As creators and users of the Web, this is our future and our freedom at stake. We are at a pivotal moment in the Web’s history, and we need to decide which kind of society we want to live in and what kind of Web we want as part of that. Do we want a free society or a controlled one? Personally I think the choice is obvious and we must use this bill to demand clear privacy rights for Italy, and set an example to the rest of Europe and the world.
And I fully agree that consent does not constitute a legal basis for the processing of data when there is a significant imbalance of power between the data subject and the data processor. And when the data processor often deals in secret with our State or foreign states, as we discovered from the Snowden revelations.
Do you think that provisions for protecting anonymous communications are strong enough in the Italian Bill of Rights? In Brazil this matter was highly controversial.
As we see it, the provisions in this bill are not satisfactory and leave a lot of room for interpretation. Anonymity is only protected unless the law says otherwise. This leaves a loophole for law enforcement, security and intelligence agencies to overrule the right to individual privacy, so the nature of surveillance legislation and government oversight of surveillance programmes will determine how effective the bill is in this respect.
The right to anonymity in the age of “big data” needs more. Together with the right to anonymity, encryption and to be free from surveillance, our right to data should be developed further. Everyone should have the right to own and exercise full control over their personal data. Personal data should be processed and/or re-used only with full and informed consent of the individual concerned.
And we want to go further, the right to own personal data also includes the right to export, import, transfer, synchronise and process personal data. As I said before, bills like the Internet Bill of Rights drafted in Italy are setting the bases for the future, therefore, we need not only to regain terrain as individuals, we need to claim new territories, new freedoms.
To this day, it is not clear how the Italian Bill of Rights will be enforced: what kind of mechanisms did Brazil approve in order to enforce its Bill of Rights?
This is an ongoing process – Marco Civil is a framework Bill, and the Brazilian government is now working to pass laws translating the principles into practice. It means that the political struggle continues for those who work in the public interest, and it becomes more technical. The Brazilian government continues to be committed to the participatory methods and has held public consultations, online and offline, for its net neutrality and data protection framework.
In fact, at Web We Want we continue to support Brazilian civil society, because this phase is more complex than discussing the principles, and far more technical. Civil society and academia have to continue to be vigilant so that the original intent of the Marco Civil is preserved.
Finally, do you think that other countries will follow Brazil and Italy? Unfortunately, European countries like France – where a draconian law on mass surveillance has just been declared constitutional – risk setting a very bad example in Europe….
Definitely, there is a trend toward codifying Internet Rights, sparked by the Brazilian legislation, and by Tim Berners-Lee and the Web Foundation’s calls for a new set of principles to “lock the Internet open”. We urgently need a new pact to set the basis of the era we are entering to preserve the values that define us as humans and the gains of the past century, our fundamental rights.
There are already similar processes taking place in several jurisdictions around the world. The most promising one is taking place in Nigeria, followed by processes in the Philippines and Jordan. We are following all of these closely, and hope they will serve as a catalyst for others to follow. Those processes are taking place in societies in transition, both economically and politically, and each face their own unique challenges.
We also hope that Italy’s Bill of Rights will put pressure on the EU to adopt similar legislation at the EU level. We felt the recent proposals of the Digital Agenda fell short, most notably in the area of net neutrality, and were captured by entrenched corporate interests. We need to transform the Copyright Report presented by Julia Reda into concrete change. And we urgently need to have an honest conversation about surveillance in Europe. I will say that recent decisions taken by France, Spain and the UK are just deplorable. We need to act upon those and Italy is going in the right direction.
You can also read an interview (in Italian) with Juan Carlos De Martin, Professor at the Department of Control and Computer Engineering at the Politecnico di Torino and co-founder of the Nexa Center for Internet & Society, who responds to some of Renata’s points on the bill.
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