Is the Internet in need of a Constitution? The question is topical after the news of censoring initiatives by the Chinese government, leading to the arrest of a dissident there, and even of the cooperation offered by an American portal, Yahoo!. The question cannot be dodged by arguing that any attempt to impose rules on the Web is impossible or unnecessary. The Internet is the widest public space mankind has ever known, where every day millions of people exchange messages, produce and acquire knowledge, build up political and social participation, play, buy and exchange goods and services. Can all this be left to the bullying of authoritarian regimes or to the conveniences of the market?
Some months ago Microsoft already started agreeing to warn its Chinese customers not to use words like liberty, democracy, participation in their electronic messages. More seriously, Yahoo! provided the information necessary to trace back an e-mail that a journalist, Shi Tao, had sent to the United States, reporting on a warning issued by the government to journalists over the risks of the presence of dissidents at the Tienanmen Square's anniversary. Shi Tao was later sentenced to ten years in prison for spreading allegedly secret news. Finally, a law was passed that subjects messages over the Internet to strict control, authorizing only the "good" ones, in order to avoid a democratic contagion spreading via the Web that might foster the influence of voluntary organizations, make mobilization possible among the more than one hundred million Chinese web-surfers, and thus bring about not only dissent, but also rebellion. Do we have to draw the conclusion that the Internet is by its very nature democratic, and incompatible with authoritarian regimes?
All these facts show very clearly that Internet problems cannot be analyzed from the viewpoint of the traditional libertarian idea that considers the Web to be an intrinsically anarchical space capable of autonomously redressing a violated liberty and which cannot bear any regulation. But to justify the information against the journalist, one of the founders of Yahoo! stated that his company abides by the laws of the country in which it operates. Rules, therefore, exist, and they are severe, and are reinforced by disquieting alliances between States and enterprises, becoming instruments that do limit liberty.
Thinking of legal rules to counter that possibility becomes a necessity, and almost a democratic duty. But one is immediately faced with concrete obstacles, raised in every sector against any attempt to devise legal guarantees adequate to meet the realities of a globalized world and of the new "spaces without borders" like the Internet: namely the sovereignty of national states, and the deep-rooted habit among trans-national companies of claiming to be themselves the issuers of the rules affecting them.
Have we no choice but to give up, or should we simply trust in the virtues of the Internet? Looking around, one can spot other possibilities. A fine analyst, Franco Carlini, is proposing a social reaction: let us immediately exploit the opportunities offered by the Web itself, the sensitiveness of the surfers and the possibility of immediate mobilization, replying in this way to any message coming from a Yahoo! mailbox: "Your message is refused, but we will be pleased to read it if it comes from any mail service other than Yahoo! and is respectful of human rights". In Italy, the members of Magistratura Democratica (Democratic Magistracy) are already doing that, and the Peacelink association offers a mailbox to those who quit Yahoo!. Lacking guarantee rules, citizens all over the world are trying to give shape to a kind of counter-power.
Initiatives of this nature, that take advantage of every means the Internet can give, have been defined as "poacher's strategies", and in other situations have produced significant results, as in the case of the boycott of transnational companies exploiting juvenile labour. At present, Reporters sans Frontières provides instructions about how to spread information over the Internet without being detected. This is more difficult because of the presence of a national state determined to maintain a hard line, and Yahoo!'s interest in conquering China's enormous market. However, should the type of reaction illustrated above succeed in getting a sufficient critical mass, it would surely have more than symbolic importance. That is why the thesis of those arguing that it is better to accept what Yahoo! is doing rather than leave Chinese customers to a much more oppressive national monopoly is not convincing. The very fact that the problem has been raised highlights the concrete risk of a "market censorship". This is a matter on which I have long ago tried to focus people's attention, and it cannot be dodged, considering that the Web's commercial uses have surpassed the non-commercial, thus opening up the prospect of deep changes in the nature of the Internet itself.
The chances of success for strategies from below increase if they are also backed by institutional strategies. When I speak of a Constitution for the Internet, I am not thinking, of course, of a document similar to national Constitutions, but of the necessity to define the principles on which to base rights relevant to the situations in which those using the Internet find themselves. As a constituent assembly to promulgate those rights is unthinkable, it is necessary to follow different paths, seizing all the opportunities in any part of the world as they arise.
A good starting point could be the European Union's Charter of Fundamental Rights, in which the right to protection of personal data is actually recognized as an autonomous fundamental right. This means going beyond the traditional notion of privacy, and considering the strong protection of personal information as an inalienable aspect of the liberty of a person. It is important to keep this in mind, because the European Union constitutes at present the region in the world with the highest level of protection of personal data, and this fact is influencing decisions in many other countries.
At the World Conference on Privacy, held in Venice in September 2000, the Chief of the Italian Authority launched the project of an international Conference on this topic. This proposal was upheld by the World Conference recently held in Montreux. As past experience shows, reaching agreement will require lengthy negotiations between governments. In the meantime, all the bodies involved in managing the Internet- whether states, citizens, providers, producers, enterprises, or other authorities - are required to start strengthening and enforcing the rules already written down in several documents, experimenting the "new-generation" codes of self-discipline - that is, those which are not the product of sectorial interests only, but are the result of a joint discussion with public bodies - while ascertaining which problems can be solved through better design and usage of existing technologies, thus helping to establish what a new Convention should include in practice.
Along this road, the opportunity offered by the World Summit on the Information Society, to be held in November in Tunis on the initiative of the United Nations, should not be missed. In fact, there is a proposal that at that meeting a Charter of Rights for the Web be approved, which starts from the recognition that the Internet is bringing about a new, great redistribution of power. Lest censorship-oriented attitudes prevail, it is high time to demand some "constitutional" principles as part of a new planetary citizenship: freedom of access, freedom of usage, the right to knowledge, respect for privacy, recognition of new public goods. In Tunis there will be an opportunity to decide whether technical management of the Internet should pass from the United States to the United Nations.
Meanwhile the European Union, which could act as the motor for this process and has taken a courageous stance on the issue of Internet's management, is going through a period that risks being dominated solely by security concerns. The italian journalist Federico Rampini writes that "the authorities in Shanghai have installed cameras in Internet Cafés and check the documents of people entering them". That happens in Europe too, while the Commission in Brussels, mainly under pressure from Great Britain, is proposing to redraft in a restrictive sense the legal framework concerning phone communications, electronic mail and the Internet, beginning with how long the data concerning them should be kept. Reacting to this development, the European Parliament and the Warrant Authorities point out that we are dealing here with fundamental rights which cannot be restrained without upsetting the democratic character of our societies.
This confrontation highlights the constitutional dimension of the Internet. It is all the more necessary that the legitimate call for a widespread protest against Yahoo! should apply equally to those European rules that go well beyond the requirements of security protection.

* From La Repubblica of October 20, 2005.