anche in italiano

Seizures and other abuses
– from bad to worse

Giancarlo Livraghi – October 2008

Two recent episodes (that are not “isolated cases”) show, again, how distortions in Italian laws and in their application can lead to all sorts of abuses – as discussed, several times, in his website and by others concerned with freedom of opinion and civil rights. The problem is that they are not only continuing, but getting worse.

One is explained in a recent article and is obviously (no matter how it’s disguised) a case of censorship.

The other, that we are discussing here, as a single episode could be seen as a comedy of errors. A website for the exchange of music was “seized” – that is to say, access was blocked. It was soon moved to another address, and later the “seizure” was revoked. So it didn’t suffer any serious damage – and it may have gained some publicity as a result of the protest, in Italy and elsewhere, caused by the attempt to choke it. The instigators of the repression (as usual, the lobbies of music majors) were (in this case – and so far) defeated and ridiculed. But the procedures in this grotesque affair reveal several alarming abuses.

Many problems, for many years, have been caused by an awkward peculiarity of Italian legislation, that treats copyright infringement as a criminal offence. And it has always been an awful abuse to seize computers, servers etcetera with a procedure that is useless for investigation purpose and dramatically harmful not only for suspects who are “innocent until proven guilty”, but also for people and organizations who are not involved in the facts (or assumptions) being investigated.

In recent years this abuse has taken a new twist, that queerly extends the “seizure” concept to the suppression of a website – or if, as in this case, it isn’t in Italy, forcing Italian internet providers to block access (or even, as in this example, to arbitrarily re-route the “traffic” to another foreign website, dedicated to persecuting people who are trying to access the blacklisted source).

It would be dangerous to underestimate the implications of these behaviors (too easily supported by internet providers, who care about their selfish interests above the rights of their customers). They go far beyond the consequences of individual episodes, suggesting criteria and procedures that can be extended to the repression of any unwelcome opinion or information, as well as of enterprises competing with “favored” interests.

To make things even worse, in this case the attack was on a site that doesn’t offer file sharing, but information on where resources can be found. This could lead to the absurdity of turning not only connection providers, but also search engines, into censors, spies and “sheriffs” of the net – for inquiries and prohibitions originating in any country and extending beyond its borders.

In a “package of rules” recently approved (September 24, 2008) by the European Union Parliament «measures that would have allowed a control on internet users were rejected.». Specifically, «the MEPs rejected the idea that ISPs should filter all downloads and punish the infringers of copyright rules, being thus transformed into a sort of online police.»

Of course it remains to be seen if and how “good intentions” will be applied, but in the meantime Italian authorities, once again, appear to be peculiarly prone in obeying the whims and wishes of the “owners of ideas” – and not a careful as they should be in ensuring freedom of opinion and civil rights.

A description of this case, and it general consequences, is in a statement issued by ALCEI on October 7, 2008

An update in the piratebay case.
The Bergamo Criminal Court overrules the seizure,
but establishes a case law
that is a violation of civil rights.

On 16th August 2008 ALCEI reported to the Italian Data Protection Authority the violations of law contained in the pre-emptive seizure order issued by the Justice for preliminary investigation of the Bergamo Tribunal.
In that report, ALCEI pointed out that:

  • the wrong and manipulative extension of the provision that disciplines a pre-emptive seizure to include the hijacking of online traffic;
  • the enforcement of a court order outside Italian jurisdiction and, what’s even worse, not based on any actual criminal offense, but on “statistical” hypotheses based on data that have no scientific reliability;
  • the misconduct by the Bergamo Guardia di Finanza that, without any court order, ordered internet access providers to redirect all requests of connection from Italy to the website to another site, placed in the UK and managed by an organization backed by the music industry.

While we are waiting for the decision of the Data Protection Authority (that we hope will come soon) the Bergamo Court has overruled the preemptive seizure order with a decision that, instead of solving the problems arising from the first decision, creates worst issues. The Bergamo Court, in fact, has overruled the seizure, but only on the legal basis. As it had been pointed out by ALCEI, that “seizure” cannot be interpreted as “traffic hijacking”.

But the court did not, as it should have done, evaluate first of all the lack of Italian jurisdiction. By not doing so, the Bergamo tribunal has created a dangerous case law that, by reciprocity, allows any foreign magistrate to investigate and take to court an Italian citizen, with the additional absurdity that even in the absence of any evidence that a crime has been committed, a legal prosecution can be based on hypothetical “statistic calculation”.

Furthermore, by asserting the validity of the public prosecutor investigation, the Court has de facto established the automatic liability not only of internet providers, but also of search engines, and the possibility of using, as an investigative tool, data and information with no solid ground.

And also, by saying that even if preemptive seizure has been wrongly enforced , it is «in theory compatible with sect.14 D.Lgv 70/20003» (EU e-commerce directive implementation, dealing with ISP liability), the Court of Bergamo on the one hand allows “owners of ideas” to push for an additional and barbaric copyright law amendment while, on the other hand, it reaffirms an obvious error of interpretation of law by affirming the role of ISPs as “sheriffs of the net”.

ALCEI expresses serious concern about this court decision that fails to offer clear references for citizens and enterprises, increases confusion and the perception that, when copyright is involved, law is not “equal for all”.

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This article was published also in edri-gram
on October 22, 2008

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