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INDEX

Introduction__________________________________________________________ 1

Chapter I: Introduction to a right to Internet access

1.Birth and importance of the Internet________________________________________2 2.The Internet as a physical place___________________________________________9

3.Access to information_________________________________________________ 18 4.Freedom of expression and the Internet in the international legal system__________ 24

4.1 The perspective of the United Nations (UN)_________________________25 4.2 The perspective of the European Union_____________________________30 5.Italy: looking for a constitutional foundation________________________________34 5.1 Italy: The Declaration of Internet Rights____________________________42

Chapter II: Disparities and copyright infringement over the Internet

1.Network Neutrality___________________________________________________ 46 1.1 History of the regulation of Network Neutrality______________________49 2.The Digital Divide: definitions and different conceptualizations_________________54 2.1The interventions aiming to narrow the digital divide__________________59 2.2 The fight against the digital divide in Europe________________________64 3.Internet access and copyright infringement. The case of France: from HADOPI I to HADOPI II___________________________________________________________ 67 3.1 Legal serendipity applied to the HADOPI case_______________________73 3.2 After the review of the Council___________________________________77

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2 Chapter III: Different interpretations of the right to Internet access and some issues 1.Is the right to Internet access a human right?________________________________ 80 1.1 The right to Internet access IS a human right_________________________81 1.2 The right to Internet access is NOT a human right_____________________89 2.The right to Internet access explained through the Public Accommodation Law_____93 3.The right to Internet access as a social right________________________________110 3.1 Progressive implementation____________________________________ 113 3.2 Subsidiarity_________________________________________________115 3.3 Existential minimum__________________________________________ 116 3.4 Prohibition of retrogression_____________________________________119 4.The major problem of censorship________________________________________121

Conclusion__________________________________________________________129

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1

INTRODUCTION

It is becoming more and more evident how the birth of the Internet has deeply changed our habits and our social relationships. The Internet is no longer a simple means of mass communication, but it is a new dimension, a new place (the so-called cyberspace), where it is possible to enjoy a wide range of services. It has affected the way citizens exercise their rights: it is now a platform for political debate, for political propaganda, to seek job opportunities in addition, to the digitalisation of many public services. It has also affected the daily life since it is used to be in touch with friends and family, to buy products, to see movies and to perform many other activities.

Today, more than ever, we live “over the Internet”. Therefore, the Internet is being considered as a fundamental good that States must protect.

Starting form this assumption, this work wants to bring the attention on the right to Internet access, also known as the right to broadband or freedom to connect, to analyse its problematics and challenges. The work begins with a small summary of the history of the Internet highlighting its importance in several contexts. It proceeds by focusing on the debate over the conceptualization of the Internet as a physical place and its repercussions.

Finally, to better understand the recognition of a right to Internet access, it is essential to deepen the discourse of freedom of expression, which is strictly connected with such right.

In the second chapter, the focus will then shift to the concepts of network neutrality and digital divide and how governments have acted to guarantee the former and prevent the latter from a legislative point of view. To conclude, the case of the French law HADOPI about copyright infringement is analysed.

To conclude, the last chapter examines three main different interpretations of the right to Internet access in order to be added into the Constitution of every country. Lastly, to better define and understand this international reality, the practice of censorship performed by governments will be analyse in order to understand how it is related to the concept of Internet access.

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CHAPTER I

INTRODUCTION TO A RIGHT TO INTERNET ACCESS

1.Birth and importance of the Internet

October 29,1969 is the date that has changed the world forever and sees the start of a technological revolution. The first communication from one computer to another happened. The message was sent from a research lab at UCLA to Stanford Research Institute; unfortunately, the message “login” did not arrive complete, but only the first two letters were delivered before the system crashed1. However, this represents a cornerstone in history.

This first prototype of the Internet was called ARPANET2- Advanced Research Projects Agency Network, founded by the U.S. Department of Defence – in order to share data and information safely during the years of the Cold War, where countries feared a nuclear war and the need of controlling computers remotely was stronger than ever. Therefore, the Internet was originally created to serve military purposes.

Just in 1974, ARPANET went commercial and the term “Internet” was created, but just in 1993 the Internet became browsable and Mosaic became the first browser available.

Five years later, in September 27, 1998 Google was born revolutionizing the Internet and the use of it, forever.

Before starting a deep analysis about the characteristics of the Internet and its access, it seems appropriate to specify what the term Internet means and how it works. According to François Soulard3, the Internet is a “network of information networks that allows the exchange of information between computers via a shared protocol: the TCP/IP protocol.”

1 All That’s Interesting, A History of the Internet And Its Invention, October 29, 2015. See https://allthatsinteresting.com/internet-history.

2 The project of ARPANET was developed by the US Defence Advanced Research Projects Agency, DARPA, with the aim of founding innovative solutions in the communication sector. DARPA was launched in 1958, after the launch of the Soviet probe, Sputnik. Nowadays, it comprises 220 government employees in six technical offices, including 100 program managers, who averse about 250 research and development programs. DARPA, About us. See https://www.darpa.mil/about-us/about-darpa.

3 François Soulard, The Internet as a Common Good, October 31, 2018 in Wall Street International. See https://wsimag.com/science-and-technology/44147-the-internet-as-a-common-good.

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3 The expression TCP/IP stands for Transmission Control Protocol/ Internet Protocol and it is a suite of communication protocols used to interconnect network devices on the Internet, but it can also be used as a communication protocol in a private computer network. TCP/IP specifies how data is exchanged over the internet by providing end-to- end communications that identify how it should be broken into packets, addressed, transmitted, routed and received at the destination. IP defines how to address and route each packet to assure that it arrives at the right destination 4. In other words, the TCP has the role of fragmenting data into packets, which must be send, and the IP controls that these packets are taking the right direction, until their arrival.

Starting from the end of 1990s, the success and the widespread use of the Internet remodelled the social and political life of citizens, emerging as an essential tool to exercise fundamental rights and freedom. The emergence of web 2.0 in the first decade of the twenty-first century was itself a revolution in the history of the Internet, fostering the rise of social media and other interactive, crowd-based communication tools5. Every sector of social life is being affected by the Internet: the freedom of expression, the job sector, the education, the criminal law in terms of cybercrimes, the administrative law in terms of e-government and digital administration. Several are the activities that each person can perform online, such as:

-the use of Blog and Forum, which allow communication and exchange of information between people who share the same interests, allowing a global engagement;

- sending and receiving emails, simplifying the transmission of documents and general communication;

-the chat rooms, which allow real-time conversations;

-e-commerce and e-banking, allowing consumers to buy whatever they want at any time and place, comparing different sites and offers;

4 SearchNetworking, TCP/IP Definition, posted by Margaret Rouse. See https://searchnetworking.techtarget.com/definition/TCP-IP.

5 OpenMind BBVA, How the Internet has changed everyday life. See https://www.bbvaopenmind.com/en/articles/internet-changed-everyday-life/.

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4 -the possibility to seek for any kind of information, thanks to online newspapers but also thanks to many sites that share materials related to different subjects (history, geography, science, politics, tutorial and so on…);

-the use of social network6, such as Facebook, Twitter, Instagram, creating online community where people can interact with each other, share the content they want and be in touch with friends and family and meet new people.

Facebook is nowadays the largest platform in the world, with 2.4 billion users. Together with YouTube and Whatsapp, they count 3.5 billion users out of 7.7 billion of the world population7, without counting all the subscriber to the other social networks.

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Social Networks, more than anything else, have changed the way people relate with each other and what they feel as a community. Through them, millions of users share their thoughts and feelings, their experiences, images and videos. Social Networks are used to express identity but also as a means of confrontation with others. Additionally, they are

6 A small predecessor of social network was the social networking website Six Degrees, created in 1997 which enabled users to upload a profile and make friends with other users. The first social media to reach a million users was MySpace, which reached this target in 2004. Our World in Data, The rise of social media, by Esteban Ortiz-Ospin, September 18,2019. See https://ourworldindata.org/rise-of-social-media.

7 Our World Data, Ibidem p.3.

8 Ibidem note 6.

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5 changing the way people access information and news and how citizens organize to demand political change.

As a matter of fact, politics must deal with a great change deriving from the Internet penetration in every aspect of citizens’ life. The Internet is replacing the traditional squares, speeches, becoming the new place for democratic involvement. It allows wider participation, since “the cost of entry to the global dialog on the Internet is much lower than, for example, the cost of entry to mainstream political participation.9” A major example in the Italian political scenario is the 5 Star Movement, which was born as a simple blog to discuss disagreements against government, while today it is one of the strongest political party.

The number of publications regarding the role of the Internet and technologies in political participation has increased substantially, claiming that it has drastically altered the cost structure of participation, and has also increased the spectrum of possible political activities10. In the article of E. Anduiza, M. Cantijoch & A. Gallego11, three are the main aspects related to the Internet in the political scenario. Firstly, the effects of the Internet on political participation12, whether they are positive or negative, starting from the assumption that political activities should be divided into those which can only be performed online, those which can only be performed offline and finally, those which exist in both “worlds”. Therefore, the emphasis is on the challenges posed by online and offline dimensions in defining political participation and its mode. Secondly, the relationship between Internet use and political participation since it can change attitudes

9 JOSHUA KNAUER and MAURICE RICKARD, Information Systems and the Environment, 2011, p. 188.

See The National Academy Press, https://www.nap.edu/read/6322/chapter/18#188.

10 E. Anduiza, M. Cantijoch & A. Gallego, Political participation and the Internet, 2009, Information, Communication & Society, September 18, 2009, p. 2. See pdf at https://www.dhi.ac.uk/san/waysofbeing/data/citizenship-robson-anduiza-2009.pdf.

11 Ibidem note 10.

12 “Political participation can be loosely defined as citizens’ activities affecting politics. Ever since the famous funeral speech of Pericles (431 BC) politicians and scholars have stressed the unique character of democracy by emphasizing the role of ordinary citizens in political affairs. By now, the list of participatory activities has become virtually infinite and includes actions such as voting, demonstrating, contacting public officials, boycotting, attending party rallies, guerrilla gardening, posting blogs, volunteering, joining flash mobs, signing petitions, buying fair-trade products, and even suicide protests.” Oxford Research Encyclopedia, What is political participation? See

https://oxfordre.com/politics/view/10.1093/acrefore/9780190228637.001.0001/acrefore9780190228637- e-68.

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6 and political behaviour. Finally, the third part focuses on whether the Internet can enhance or diminish inequalities in the political arena.

According to R. Karakaya Polat13, the topic of online political participation has to be dealt starting from the assumption that the Internet is not a simple form of technology, but rather it is characterized by three mains facets: the Internet as an information source, the Internet as a communication medium and the Internet as a virtual public sphere. The first facet develops from the idea that the Internet may potentially increase participation because it allows easier access to information. However, the main question is whether there is a real link a between more information and more political participation. A clear answer has not yet been given and different points of view exist on this matter, even if the availability of information has been recognized as an important prerequisite for political participation. The second facet implies that it is essential to understand the different types of communication that can occur on the Internet in order to provide insights concerning the modes of political participation. The author uses Weare’s typology of communication, which will be deepen in the third subchapter (Access to information). Also, in this context, the question is if increasing communication capability would lead to increased political participation. Surely, the Internet has favour political participation for some segments of the society such as those who are geographically dispersed or those who cannot get about easily (disabled, single mothers) and people living in rural areas. In short, it can be said that the Internet has helped political participation for people living in specific conditions. Thirdly, the Internet can be seen as a tool for extending the public sphere, where a critical debate can take place, without governmental and commercial interests. Users can find support and information online through issue-based communities from people who share the same visions and ideals.

Online participation also allows users to formulate more articulated messages compared to face-to-face communication, since they have time to write their message and do not have to answer immediately. However, there are some constraints to all these virtues. It seems that people who participate online are more likely to be already active in offline political participation, therefore participants are always the same. Second, the online political discourse tends to be fragmentated. Participation usually takes place around

13 R. Karakaya Polat, The Internet and Political Participation: Explanatory Links, December 1, 2005 in the European Journal of Communication.

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7 narrow interests and issues; conversation on forum is between people with the same political affiliation and ideology, therefore, there is not enough space for criticism. Last, since identities on the Internet are fluid and mobile, combined with the possibility of expressing an opinion anonymously, this fact leads to a lack of trust and feelings of reciprocity which usually occurs in the face-to-face communication.

Considering all the above-mentioned factors, those are the reasons why the Internet is increasingly being considered as a fundamental common good14. If the Internet is considered a common good, the State has the duty to protect and guarantee the access to this new social, economic, and legal dimension. In his article15, Mario Rodrigo Canazza states that the Internet presents the social and economic attributes that define all the global public goods. Global public goods present a broader social aspect and a narrower technical and economic aspects. Goods can be considered as such if they possess an intrinsic high social value and respond to a great societal demand. The Internet possess both since it is an enabler of other public goods and human rights, such as knowledge, data, education, arts, health, information, freedom of expression and association. Whereas the technical economic perspective is due to the requirement of government intervention and international cooperation to ensure and promote equality in access. Another point of view regarding the Internet as a common good comes from F. Soulard16. In his definition on the functioning of the Internet, he also makes reference to the fact that the resources mobilized in digital sphere are combined and plural and therefore the digital environment cannot be referred to as one common good, but rather, commons specialists define it as a common pool resource, an hybrid compound where resources are shared.

14 On 18 September 2012, the Italian Ministry of the University and research launched a public consultation with the aim to “enrich and improve the document that summarizes the Italian position regards the fundamental principles of the Internet”, which was brought to the Internet Governance Forum (IGF), in Baku. In the section “General Principles” it is stated that “The Internet protocols are an inalienable common good, as a guarantee of survival of the network itself. They remain at the disposal of the different actors who operate in the Internet, whether they are civil society, enterprises, or public institutions. Furthermore, data, information, content and experiences available in the network and in the platforms hosted therein, represent a common resource in digital form which, by expanding the cultural offerings and the possibility of sharing knowledge, enriches the community and promotes the social and economic progress. To no individual or group can be prohibited, directly or indirectly, to access the public content present on the network”.

See http://download.repubblica.it/pdf/2012/tecnologia/internet.pdf.

15 M. Rodrigo Canazza, The Internet as a global public good and the role of governments and multilateral organizations in global internet governance, April 2018 in Meridiano 47, Journal of Global Studies, p.2.

16 Ibidem p.1.

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8 On the contrary, recent geopolitical debates have introduced the concept of global commons. US geopolitical Zbigniew Brzezinski refers to them as strategic commons. The use of these global commons and its administration go beyond the scope of a single state and require the participation of several parties to face new challenges arising from technological change and innovation. They can be defined as non-governed spaces that affect directly and indirectly the security of the state17.

Given the many activities performed online and the impact they have on the life of individuals and communities, it is impossible to deny the birth of a strong, new relationship between law and technology. The World Wide Web could not be separated from many problems the society tries to cope with, such as the protection of fundamental rights. As a matter of fact, in the last years, a controversial international debate was started on the issue of the Internet access as a fundamental right. Some say it should not be conceived as an independent right, but rather as a part of the freedom of expression. The right to Internet access includes “access to online media, equitable access to the means of online communication, the right to freely access online information, the right to be free of undue restrictions on content and privacy rights”18. Other scholars have given different interpretations of the right to Internet access, related to social rights and public accommodation law, which will be discussed further in chapter 3.

Nonetheless, in a historical period marked by the phenomenon of globalization, it is difficult to shape societies into fixed borders, because not only they respond to national rules but also to international ones.

The Internet is the main symbol of today globalization, since it goes beyond the boundaries, overcoming customs, cultural and ideological barriers. It creates a new, virtual territory where the society acquires a virtual “citizenship” through its access.

17 F. Soulard, Ibidem p.1.

18 S. Tăbuşcă, The Internet access as a fundamental right, Vol. 4, Romanian Economy Business Review Jan. 2010, p.1.

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9 2. The Internet as a physical place

It seems appropriate to discuss a notable aspect in the development of the Internet, which is the vocabulary it has generated.

Starting from the 1990s, the years that witnessed the birth of the Internet, metaphors started to be employed, mostly to explain how the Internet works and how it is constructed to people who did not have the capabilities to understand it at all. In fact, saying that the Internet is “a globally connected network system that uses TCP/IP to transmit data via various types of media. It is a network of global exchanges – including private, public, business, academic and government networks – connected by guided, wireless and fiber- optic technologies”19 to someone who has no knowledge in the technological and electronic fields is like say nothing. For this reason, Internet metaphors started to be used.

They permit individuals to visualize abstract concepts and phenomena, comparing them with concrete and well-known concepts and objects. Metaphors help to overcome the problem of invisibility and intangibility of the Internet’s infrastructures.

The Internet is, in fact, mostly characterized by its decentralization. As Gertrude Stein said in Oakland, California, “there is no there there”20 with the Internet: information are gathered and transmitted across phone lines and cables reaching millions of computer terminals across continents and oceans, without being detected by the eyes. The Internet has no owner or central authority21, it can be described as a controlled chaos22. In his article, L. Joseph Gibbons23 identified two major characteristics of the Internet. Firstly, its architecture. The Internet is formed by several computers, starting from 300 computers

19 See Techopedia https://www.techopedia.com/definition/2419/internet.

20 C. Crawford, Cyberplace: Defining a right to Internet Access through Public Accommodation Law, Temple Law review, 225 (2003), p. 229, quoting Gertrude Stein, Everybody’s Autobiography, 1993.

21 Richard W. Wiggins, The Internet for everyone: a guide for users and providers 5, 1994 quoted by L.

Joseph Gibbons, No Regulation, Government Regulation, or Self-Regulation: Social Enforcement or Social Contracting for Governance in Cyberspace, Cornell Journal of Law and Public Policy, 1997. See pdf https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1212&context=cjlpp , p.14.

22 L. Joseph Gibbons, ibidem note 20.

23 L. Joseph Gibbons is a professor at the University of Toledo. He teaches Antitrust, Copyright, Cyberlaw, Ecommerce, Intellectual Property Licensing & Management, Intellectual Property Survey, Online Dispute Resolution (ODR), Secured Transactions, Torts, and Trademark law. His areas of research include both international and domestic intellectual property law, online dispute resolution, intellectual property licensing and management, technology transfer, ecommerce, and cyber-law.

See The University of Toledo https://www.utoledo.edu/law/faculty/fulltime/gibbons.html.

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10 in 198124 until 9.400.00025 nowadays. As explained above (p.8), data travel in packets through IP, following a specific route, but if the IP is not correct, they reroute based on the IP address. This process is called dynamic routing and can deliver the message by taking different routes, depending on the most efficient path based on time-efficiency26. The routing is not geographically direct, and this represents one of the greatest strengths of the Internet. Secondly, its fractal nature27. The telecommunications industry has developed statistical models to predict aggregate user patterns, however, these patterns do not accurately reflect the Internet, since the pattern of data transmitted through a point on the network tend to be more chaotic. For this reason, the existing regulatory measures applied for other technologies are inappropriate for the cyberspace28.

It is for these motives, that some researchers have welcomed the idea of a free and unregulated cyberspace, giving birth to the so-called Cyber-Libertarianism. Cyber- Libertarianism refers to the beliefs that individuals, acting in whatever capacity they choose (citizens, consumers, companies), should be at liberty to pursue their own tastes and interests online29. Their objective is to minimize the intervention of the state in social

24 ACLU v. Reno, 929 F. Supp. 830, 831 (E.D. Pa. 1996) quoted by L. Joseph Gibbons, ibidem note 20, p.15.

25 L. Joseph Gibbons, ibidem note 20.

26 Barbare M. Ryga, Cyberporn: Contemplating the First Amendment in Cyberspace, 6 Seton Hall Const.

L.J. 221,224 (1995) quoted by L. Joseph Gibbons, ibidem note 20.

27 Fractals are derived from the branch of mathematics known as chaos or complexity theory. Fractals exhibit "self-similarity"; in other words, a rough similar pattern emerges at any chosen level of detail. Kevin Werbach, Digital Tornado: The Internet and Telecommunications Policy, Office of Plans and Policy, Federal Communications Commission, OPP Working Paper No. 29 (1997) quoted by L. Joseph Gibbons ibidem note 20, p.14.

28 The word "cyberspace" is credited to William Gibson, who used it in his book, Neuromancer, written in 1984. Gibson defines cyberspace as "a consensual hallucination experienced daily by billions of legitimate operators, in every nation, by children being taught mathematical concepts... A graphical representation of data abstracted from the banks of every computer in the human system. Unthinkable complexity. Lines of light ranged in the non-space of the mind, clusters and constellations of data" (New York: Berkley Publishing Group, 1989), pp. 128. TechTerms. See https://techterms.com/definition/cyberspace.

Also, William Ford Gibson was born in 1948 in Conway, South Carolina. “Also known as the Noir Prophet of the Cyberpunk subgenre, he is an American Canadian science fiction novelist. In his short story, Burning Chrome (1982), Gibson used for the first time and invented the term cyberspace and later used the concept as a base for his debut novel, Neuromancer (1984). Gibson served as an iconographer for the information age before the wide spread of the Internet in 1990s. William Gibson is also associated with very accurately predicting the rise and upcoming popularity of reality television, video games and the World Wide Web.

[…] Most of Gibson’s early writings are works of near future science fiction with influences of cybernetics and cyberspace.”. See Famous Authors https://www.famousauthors.org/william-gibson.

29 Adam Thierer, Cyber-Libertarianism: The case for real Internet Freedom in Tech Liberation, August 12, 2009. See https://techliberation.com/2009/08/12/cyber-libertarianism-the-case-for-real-internet-freedom/.

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11 and economic problems, looking for voluntary solutions and mutual consent-based arrangements. Barbara M. Ryga affirms:

In the world of Cyberspace… anarchy reigns. There is no regulatory body, and computer users are capable of anything. The Internet is a place where everyone is welcome, regardless of gender, age, race, or association…Since there is no regulatory body policing the Internet, the extent to which an individual is capable of acting without restriction is an enigma30.

According to William Gibson, going online is not simply sitting down on a computer, but it is like entering another dimension. This double-ness of the cyber-experience, which means that the spatial experience of cyberspace includes both there and here, was well- developed by Lawrence Lessig31, who described this double-ness in one of his pleas for keeping cyberspace open and uncontrolled instead of highly regulated:

Cyberspace is a place. People live there. They experience all the sorts of things that they experience in real space, there. For some, they experience more. They experience this not as isolated individuals, playing some high tech computer game; they experience it in groups, in communities, among strangers, among people they come to know, and sometimes like. While they are in that place, cyberspace, they are also here. They are at a terminal screen, eating chips, ignoring the phone. They are downstairs on the computer, late at night, while they husbands are asleep. They are at work, or at cyber cafes, or in a computer lab. They live their life there, while here. And then at some point in the day, they jack out, and are only here. They step up from the machine, in a bit of a daze; they turn around. They have returned.32

Lawrence Lessig also underlines the negative effects of micro-intervention. Starting from the assumption that an individual can enter the medium, the Internet, without any constraint on when, how and where, any regulation brings about a limitation of individual

30 Barbara M. Ryga, ibidem p. 9.

31 “Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School. Prior to returning to Harvard, he taught at Stanford Law School, where he founded the Center for Internet and Society, and at the University of Chicago. […] Cited by The New Yorker as “the most important thinker on intellectual property in the Internet era,” Lessig has focused much of his career on law and technology, especially as it affects copyright. His current work addresses “institutional corruption”—relationships which, while legal, weaken public trust in an institution—especially as that affects democracy.” See Harvard Law School https://hls.harvard.edu/faculty/directory/10519/Lessig.

32 L. Lessig, The Zone of Cyberspace, 48 Stan. L. Rev. 1403,1403, 1996 quoted by C. Crawford, ibidem p.4.

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12 freedom33. Thomas Emerson gives a definition of macro and micro-intervention34. The macro-intervention is the operation whereby the state chooses an area or element of social life to act. Micro-intervention comprises the arrangements and decisions taken within that area so as to carry out the macro-intervention’s objective35. Therefore, L. Lessig’s teaching remains crucial: the architecture of the Internet dictates the conditions for human behaviour in it, but countries and private companies can alter the code and render this platform into something completely different from what it is intended to be36. As a matter of fact, Lessig’s vision is not completely extremist; he argues that cyberspace is substantially regulated by code37 and it is not a product of God, but rather a product of architecture.

The Cyber-Libertarianism vision finds a great synthesis in the Declaration of Independence for Cyberspace38 developed by John Perry Barlow’s explaining his opposition to the Telecommunications Act 199639. With such Act, the Internet was for the first time included in broadcasting and spectrum allotment, making a crime engaging in online speech that is “indecent” or “patently offensive” and it was at the centre of different suits, such as the well-known Reno v. ACLU case40, where the judge finally ruled that the law was unconstitutional, restricting free speech. In this Declaration, governments are rejected, and they cannot impose their sovereignty over the cyberspace.

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we

33 Ivar A. Hartmann, A right to free Internet? On Internet access and social rights, High. Tech. L. 297, p.

355.

34 Thomas I. Emerson, The affirmative side if the First Amendement, 15GA. L. Rev. 795,823, 1981 quoted by Ivar A. Hartmann, ibidem p.10, p.351.

35 Thomas I. Emerson, ibidem note 33, p. 352.

36 Laurence Lessig, Code: and other Laws of Cyberspace, 2006 in Ivar A. Hartmann, p. 356, ibidem p.10.

37 Lennon YC Chang and Peter Grabosky, The Governance of cyberspace, p.4. See pdf http://press- files.anu.edu.au/downloads/press/n2304/pdf/ch31.pdf.

38 See https://wac.colostate.edu/rhetnet/barlow/barlow_declaration.html.

39 See https://www.mitel.com/articles/telecommunications-act-1996.

40 See https://www.aclu.org/cases/reno-v-aclu-challenge-censorship-provisions-communications-decency- act.

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13 are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.

Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours. We did not invite you. You do not know us, nor do you know our world. Cyberspace does not lie within your borders. Do not think that you can build it, as though it were a public construction project. You cannot. It is an act of nature and it grows itself through our collective actions41.

Another type of metaphor for describing the Internet is introduced by L. Joseph Gibbons, who identified the biological metaphor as the most appropriate. Humans always use metaphors when they face concepts, such as technology, for which no established vocabulary exists.

Gibbons claimed:

Culturally, socially, religiously, and economically diverse communities come together so that

“the whole system is propagating and evolving…Cyberspace is a social petri dish, the Internet is the agar medium, and virtual communities, in all their diversity, are the colonies of microorganisms that grow in petri dishes. Each of the colonies of a microorganism- the communities on the Internet is a social experiment that nobody planned but that is happening nevertheless.42

Yet, organic metaphors have not taken place as the “metaphor of place”. The fact that this group of metaphors is continuously being chosen to describe the Internet reveals how we conceptualize the Internet but also what legal rules and measures should be taken into account. The lack of a centralized location is not enough to loosen the hold of such metaphors. The Internet is constantly being described as if there is a there there. Spatial constructs are utilized to make the Internet appear as a tangible entity. A multitude of metaphors that define the Internet as a place are constantly used. Terms such as chat room, Internet sites, building of sites, architecture, communities, websites, webpages, clouds, home page, surfing the Internet are now used in everyday conversations.

Social networks themselves can be described as metaphors of places. Facebook, for example, is like the cover of a book, showing the best profile that each person can create

41 J. Perry Barlow, A Declaration of the Independence of Cyberspace. Ibidem p.10.

42 L. Joseph Gibbons, ibidem note 20, quoted by C. Crawford ibidem p.8.

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14 of him/herself, it uses friendship as a metaphor to descried any connection, it allows to send and buy products and service on the so-called marketplace. Twitter can be compared to a global town square, where everyone can express its own opinion and be heard.

Instagram is someone’s personal art gallery, since it is possible to post only photos and images. All these metaphors are used to describe the Internet as if it were a physical location.

Additionally, courts are increasingly using the cyberspace as place metaphor to justify application of traditional laws governing real property to this new medium43, since such metaphors tend to influence legal thinking given their power to make the new seem familiar. However, Josh A. Goldfoot affirms that the Internet is not like all the other places. From a technical perspective, he affirms that the Internet is not a place since no one is actually “in” the cyberspace. The Internet, as explained above, is a simple computer protocol thata piece of code that permits computer users to transmit data between their computers using existing communications networks44. From a technological perspective, anyone can transmit data onto the network, but the main fact is that data are travelling on wires and through the airwaves for centuries, as it has always been with other medium of communication, such as telephone and telegraph, but no one believed such medium as

“places”. It is data that are travelling not people. Additionally, the concept of “visiting”

websites is one of the most popular; people generally believe that they simply got to a page by clicking a button, but actually they can see that page just because the page’s creator voluntarily sends it to the web user45. What is really different about the Internet is its interconnection, links can take the user from one page to another with just one simple click and maybe, it is this connection that make users believe like they are travelling.

Courts should take all these elements into account and as O’Rouke states

Rather than searching for analogies, courts and legislators could more profitably devote their energies to understanding how the Internet differs from physical space, evaluating whether those differences call for new legal rules […]46

43 Mark A. Lemley, Place and Cyberspace, California Law Review, Vol. 91, March 2003, p. 2. See pdf https://pdfs.semanticscholar.org/8c85/6e5b69bdac1406a7f11286c0a545da82c772.pdf.

44 Josh A. Goldfoot, Antitrust Implications of Internet Administration, 84 Va. L. Rev. 909, 920 (1998) quoted by Mark A. Lemley, p.4. Ibidem note 43.

45 Mark A. Lemley, p.5. Ibidem note 43.

46 Maureen A. O'Rourke, Property Rights and Competition on the Internet: In Search of an

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15 Taking a small step backward, it is also argued that the no regulation model never actually existed, despite the idyllic vision of the cyber-libertarian discourse. In fact, cyberspace is an accidental product of the United States government47 and therefore, US government as always placed some forms of control. An example is the NSFNET Backbone Services Acceptable Use Policy prohibiting the commercial use of NSFNET48. Governments are more and more interested to extend their jurisdiction to the cyberspace because individuals who are currently using the Internet have the possibility of invoking the judicial system to resolve disputes. Nations’ regulation can take two different forms:

enforcing law of general applicability or creating new laws to govern cyberspace.

Generally, governments have tried to regulate the cyberspace from the outside, without building a consensus for their policies or trying to work through Cyberian elites49 and this has created the perception that outsiders are trying to regulate Cyberspace. Legislation plays an important role, especially in combating cybercrime. However, as explained before, regulatory institutions have not an easy task, given the decentralisation and de- territorial character of cyberspace50. Internet’s territory is virtual and global, and therefore Internet law should not be limited by boundaries, but it should be equal. To this end, issues about legal consistency among states and collaboration have been raised, among which international agreements and conventions encouraging harmonisation of cyber laws. An example is the publication of the Organisation for Economic Co-operation and Development (OECD51), Computer-related Crime: Analysis of Legal Policy, emphasising the importance of establishing common criminal law and criminal procedural law to protect international data networks52. In addition, also the United States

Appropriate Analogy, 16 BERKELEY TECH. L.J. 561 (2001), quoted by Mark A. Lemley, ibidem note 41.

47 L. Joseph Gibbons, ibidem note 20, p.28.

48 Ed Korn, The whole Internet user’s Guide & Catalog, 1995 quote by L. Joseph Gibbons, ibidem note 20, p. 28.

49 L. Joseph Gibbons, ibidem note 20, p.30.

50 L. YC Chand and P. Grabosky, ibidem p.11.

51 “The Organisation for Economic Co-operation and Development (OECD) is an international organisation that works to build better policies for better lives. Our goal is to shape policies that foster prosperity, equality, opportunity and well-being for all. We draw on almost 60 years of experience and insights to better prepare the world of tomorrow. Together with governments, policy makers and citizens, we work on establishing evidence-based international standards and finding solutions to a range of social, economic and environmental challenges. From improving economic performance and creating jobs to fostering strong education and fighting international tax evasion, we provide a unique forum and knowledge hub for data and analysis, exchange of experiences, best-practice sharing, and advice on public policies and international standard-setting.” OECD, Better policies for better life. See https://www.oecd.org/about/.

52 L. YC Chand and P. Grabosky, ibidem p.11.

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16 has called on its members to the Convention of Cybercrime53 or Budapest Convention drafted by the European Council, in 2001. This Convention is the first and only international convention trying to address Internet and computer crime by harmonizing national laws, improving investigative techniques, and increasing cooperation among nations54. Nevertheless, many countries, such as Brazil, Russia, China, India, the Middle East and Asia-Pacific, have chosen not to sign the Convention because they were not involved in the drafting. Surely, the lack of participation of these countries reduces its effectiveness, which applies to less than half of the world’s Internet users.

From 1998, the management of IP or DNS55 is attributed to ICANN, Internet Corporation for Assigned Names and Numbers. ICANN is an American non-profit public corporation, which until 2016 has operated under contract from the United States National Telecommunications and Information Administration (NTIA), part of the Department of Commerce, before becoming independent under a different name, IANA, Internet Assigned Numbers Authority56. In 2013, the corporation endorsed the Montevideo Statement on the future of Internet Cooperation. The statement was also signed by the leaders of a number of organizations involved in coordinating the Internet’s global infrastructure, such as the Internet Engineering Task Force, the Internet Architecture Board, the World Wide Web Consortium, the Internet Society, and the five regional Internet address registries (African Network Information Center, American Registry for Internet Numbers, Asia-Pacific Network Information Centre, Latin America and Caribbean Internet Addresses Registry, and Réseaux IP Européens Network Coordination Centre)57. The leaders have underlined four major issues:

-They reinforced the importance of globally coherent Internet operations and warned against Internet fragmentation at a national level. They expressed strong concern over the undermining

53See pdf

https://www.europarl.europa.eu/meetdocs/2014_2019/documents/libe/dv/7_conv_budapest_/7_conv_bud apest_en.pdf.

54 Wikipedia, Convention on Cybercrime. See https://en.wikipedia.org/wiki/Convention_on_Cybercrime.

55 DNS, Domain Name System, is a hierarchical and decentralized naming system for computers, services, or other resources connected to the Internet or a private network. It associates various information with domain names assigned to each of the participating entities, including the “legacy generic” TLDs like .com, .net, .org, “new generic” like .movie, .car and finally, country-code domains like .uk, .it, and .cn.

56 ICANN. See https://www.eff.org/it/taxonomy/term/11341.

57 Wikipedia, Montevideo Statement on the Future of Internet Cooperation. See https://en.wikipedia.org/wiki/Montevideo_Statement_on_the_Future_of_Internet_Cooperation.

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17 of the trust and confidence of Internet users globally due to recent revelations of pervasive monitoring and surveillance.

-They identified the need for ongoing effort to address Internet Governance challenges and agreed to catalyze community-wide efforts towards the evolution of global multistakeholder Internet cooperation.

-They called for accelerating the globalization of ICANN and IANA functions, towards an environment in which all stakeholders, including all governments, participate on an equal footing.

-They also called for the transition to IPv6 to remain a top priority globally. In particular, Internet content providers must serve content with both IPv4 and IPv6 services, in order to be fully reachable on the global Internet58.

To conclude, given the boundaries that characterize the Internet today, Law Professor Colin Crawford, introduced the metaphor of the Internet as a cyberplace instead of cyberspace. This neologism implies a more fixed notion of property and property ownership. As a matter of fact, it will be discussed in chapter 3 the consequences of conceiving the Internet as a physical location and if the Internet should be understood to be a place of public accommodation. C. Crawford also based his assumption on the fact that people must conceive the Internet as an extension of the total artifact that is our society and laws and as its members we need to begin with crafting and applying its laws.59

58 ICANN, Montevideo Statement on the Future of Internet Cooperation, October 7, 2013 See https://www.icann.org/news/announcement-2013-10-07-en.

59 C. Crawford, ibidem p.8, p.232.

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18 3. Access to information

The rise of the Internet gave birth to a new model of information sharing, which differs from the old one for some reasons that will be explained below and which may change the landscape for the common right to access to information60, as it is interpreted for all the other means of communication.

The old model of information sharing can be defined as a one-to-many distribution, since it is constructed and controlled from the top of a hierarchical organization. This is the case with the radio, television and print media. Messages, that are sent to readers, listeners or watchers are usually carefully selected, in order to generate the greatest spectator’s response. In this model, receivers have little possibilities of giving feedbacks and therefore, it appears to be more a lecture than a conversation. The new model is the so- called many-to-many information sharing, where every reader, listener and writer is a potential speaker. It is an interactional model based on conversation, in which every person can take part. The cost is also relatively low compared to the other media, since the only requirements are a computer, a modem and an Internet connection.

In general, the Internet offers new models of communication, which are cheaper and convenient and are especially appealing to certain segments of the society such as the youngsters and those who are housebound due to disability, illness, age or lack of social skills61, increasing their communication capacity. It is important to notice that the Internet does not support all forms of communication equally. Weare62’s introduces four different types of communication model and discussed how the Internet can affect each one of them.

-Conversation. Despite the technological revolution, still much conversation between individuals remain one-to-one dialogue, reflecting the preference for an interactive exchange. Internet allows people to communicate rapidly whenever they want, without

60 Article 19 of the Universal Declaration of Human Rights includes under the umbrella of the right of freedom of expression and the liberty of having and disseminating an opinion, two other rights: to seek and to receive information.

61 R. Karakaya Polat, ibidem p.5, p.9.

62 Christopher Weare, The Internet and Democracy: the casual links between technology and politics in Int.

J. of Public Administration, April 2002.

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19 the need of having the counterpart at the other side of the communication, as in the case of the e-mail. This is the so-called asynchronous communication.

-Information aggregation. This model implies the collection, analysis and transmission of information from groups to a single individual, agency. The best example in this context would be the political scenario. The Internet would enable elections, surveys, petitions, referendums to be performed more rapidly, frequently and cheaply.

-Broadcast. This is associated with mass media (radio, television, newspaper), from one to many. With the advent of the Internet, the user is no longer a passive consumer of the information, but he/she can also become broadcasters, for example, by establishing its own website.

-Group dialogue. This type of communication involves a large number of senders and receivers and it is the most difficult form because it requires coordination and structure.

The Internet brought substantial benefits, with the introduction of chatrooms, group web sites and listserv. They are inexpensive and enable new groups to be easily formed and for new members to easily join, no matter their location. These technologies overcome the constraints of old forms of group communication, such call-in shows or public meetings63.

This distinction shows that not all forms of communication have been affected equally by the advent of the Internet. For the first two types of communication, the change seems to be at a quantitative level, because the Internet has not transformed their nature, but rather its ability to make communication more convenient and it seems also arguable how it can replace traditional forms of face-to-face interaction64.

Therefore, recalling the above-mentioned distinction between the one-to-many distribution model and the many-to-many one, some may argue that such right, as expressed in the article 1965 of the Universal Declaration of Human Rights, is not

63 Christopher Weare. Ibidem p.17, p.664-670 & R. Karakaya Polat, ibidem p.5, p.9.

64 R. Karakaya Polat, ibidem p.5, p.10.

65Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” UN, Universal Declaration of Human Rights, art. 19. See https://www.un.org/en/universal-declaration-human-rights/.

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20 appropriate for the Internet context. The right to access public information is always been about the relationship between free speech and control of government by the people, requiring transparency66. The right to Internet access is solely centred on the medium and on information flow, since thanks to its nature, the Internet is a medium which allow information to be passed easily among people from every part of the world. In this context, free speech is characterized by a strong and clear self-determination, since people can autonomously express their ideas and opinions without censorship.

Therefore, the main reason why the spread of the Internet brings with it a deep qualitative change in the conditions for promoting free speech is “that the Internet medium does not suffer from the same conditions that are inherent to the other media: allowing an individual into the medium entails in and of itself no decision on when, how and where this person will express herself” 67. Many individuals can communicate their viewpoints with one another, without being controlled by media owners and this also means, without being easily corrupt by money as it may happen with mass media. From an economic point of view, this evolution is decisive because it means that new technologies have made “non-proprietary models more attractive and effective than was ever before possible68”.

For all these reasons, many pleas for the abatement of state regulation over the Internet started to arise suggesting self-regulation over the Internet rather than state regulation69. In the case of the Internet, micro-intervention70 would not be suggested, because any intervention means a limitation of individual speech. State interventions would change the structure of the Internet, altering its nature of decentralized medium. One of the major concerns is that big media companies get to acquire transmission priority, deciding which content they would privilege over other kinds. In this scenario, it is essential to recall Laurence Lessig teaching, explained in the previous subchapter71.

66 Ivar A: Hartmann, p. 346, ibidem p.11.

67 Ivar A. Hartmann, p.352, 353 ibidem p. 11.

68 Ivar A. Hartmann, p. 353, ibidem p.11

69 David Johnson and David Post, Law and Borders – The Rise of Law in Cyberspace in Ivar A. Hartmann, p. 354, ibidem p.11.

70 See p.11.

71 See p.11.

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21 Therefore, the only possible role for micro-intervention seems to be that of keeping states and companies from changing fundamental aspects of the networks. To better understand this concept, it seems appropriate to illustrate the theory of the layer’s principle, which explains the architecture of the Internet as composed by 3 layers: the physical layer, the logical or code layer and finally, the content layer.

At the bottom there is the physical layer including computers and wires that allows communication to travel. In the middle, the logical layer including the code and protocols that makes the hardware run. At the top, the content layer, which represents the actual communication, messages that are sent across the wires.

Speech promotion duties allows a state to omit changing the physical and logical layer (and so, elementary components of Internet architecture), in order to regulate the content layer. A relevant example to better explain the content layer, which deserves a little digression, is the issue of hate speech. There is no international legal definition of hate speech and the identification of what is “hateful” is very disputed, nonetheless according to the Cambridge Dictionary, hate speech means: public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation72. The European Commission against Racism and Intolerance (ECRI) states that:

Hate speech covers many forms of expressions which spread, incite, promote or justify hatred, violence and discrimination against a person or group of persons for a variety of reasons. It poses grave dangers for the cohesion of a democratic society, the protection of human rights and the rule of law73.

It is in December 15, 2000 that Recommendation N.6 was added to ECRI’s general policy on Combating the dissemination of racist, xenophobic and antisemitic material via Internet, inciting governments to take necessary measure at national and international levels to act effectively against hate speech over the Internet, by also supporting existing anti-racist initiatives74.

72 Cambridge Dictionary. See https://dictionary.cambridge.org/it/dizionario/inglese/hate-speech.

73 The European Commission against Racism and Intolerance. See https://www.coe.int/en/web/european- commission-against-racism-and-intolerance/hate-speech-and-violence.

74 See Recommendation N.6 at https://rm.coe.int/ecri-general-policy-recommendation-no-6-on-combating- the-dissemination/16808b5a8d.

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22 More recently in December 8, 2015, ECRI also added Recommendation N. 15 75on Combating Hate Speech. The Recommendation calls for faster reactions by public figures to hate speech, promotion of self-regulation of media; raising awareness of the dangerous consequences of hate speech; withdrawing financial and other support from political parties that actively use hate speech; and criminalising its most extreme manifestations, while respecting freedom of expression76.

Protection from hate speech is also granted under Article 20 of the International Covenant on Civil and Political Rights77(ICCPR) and under Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination78.

Article 20 reads as follow:

1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

Article 4:

States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;

75 See Recommendation N. 15 at https://rm.coe.int/ecri-general-policy-recommendation-no-15-on- combating-hate-speech/16808b5b01.

76 Council of Europe Porta. See https://www.coe.int/en/web/european-commission-against-racism-and- intolerance/recommendation-no.15.

77 United Nations Human Rights, Office of the High Commissioner, International Covenant on Civil and Political Rights. See https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.

78 United Nations Human Rights, Office of the High Commissioner, International Convention on the

Elimination of All Forms of Racial Discrimination. See

https://www.ohchr.org/en/professionalinterest/pages/cerd.aspx.

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23 (b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;

(c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

Therefore, restrictions at the content layer are allowed under certain circumstances, but they should not be allowed at the physical and logical layers. According to Ivar A.

Hartmann two are the possible conclusion of the reasoning. Firstly, the positive dimension of free speech that states are trying to promote by fostering free communication, can be seen as a relevant element of a constitutional democracy. Secondly, the fact that regulations and policies, which aimed at promoting speech, have faced serious difficulties with previous media because they present some characteristic which the Internet refuses79. In fact, it allows asynchronous communication that sets the ideal conditions for the state to pursuit the goal of enabling freedom of expression.

79 Ivar A. Hartmann, p. 361. Ibidem p.361.

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