The development of the Information Technologies that has taken place since the late fifties of the last century, and in particular the development of telematics we have witnessed in the last twenty years, shows how it appears very difficult today to predict future technological developments. This explains why in the constitutions of the vast majority of Western states there is no explicit reference to Information Techonology or telematics. Only some most recent constitutional texts, in fact, have introduced the right of access to the network, or at least free access to sources of information, as an autonomous right: for example, articles 18 and 105 of the Spanish Constitution of 1978, art. 35 of the Portuguese Constitution of 1976. As a result, legal practitioners had to engage in a constant adjustment of interpretation of constitutional rules to technological developments that have occurred gradually.
Through this activity of regulatory update it has been detected – and so it is incessantly – the need to maintain a balance between values and interests. On the one hand, it is clear the primary need for security of individuals, on the other hand it is also evident how scientific progress, especially in the fields of information processing and communication of data, cannot ignore the rules which guarantee freedom, identity and protection for every member of the society.
In this context, for example, in Italy new rights have been recognized on the basis of those contained in the Constitution. Thus, the right to the free expression of thought, to inform and to be informed, assumes the new role of freedom of information and communication technology; the right to privacy is recognized as one of the rights of the person, and the right to freedom of private economic initiative implies the freedom of access to the market (including the telematic one).
The issues just mentioned are, of course, particularly complex by virtue of the global nature of the Internet and of the activities carried out by it which limits, ab origine, the effectiveness of any regulatory action of individual states and prevents supervisory actions and sanctions at the national level. It is determinant, indeed, the territorial dimension in which regulation must take control of the increasingly global media which, therefore, cannot be separated from the definition of the actors who have to participate in the regulation itself, by defining the real relationship that governments and institutions are called to give in the evolution of digital markets, with particular reference to the most recent debates on the governance of the network, on the net neutrality and the movement of personal data of the users.
In this context, self-discipline is a possible solution to compensate, at least in part, the difficulties of application of national laws . In the background there is the belief that the same technologies that are designed to increase the efficiency of the new types of networked business constitute in fact the inescapable foundation of their regulation.
In such a framework, the regulator is the “code”, that is the hardware and software that make cyberspace as it is. The code (i.e. the architecture of the network) sets the conditions under which life is lived in cyberspace. It determines how easy it is to protect the privacy, or censor freedom of expression. It determines whether the access to information is general or if the flow of information is limited according to the geographic areas or to other factors. In a number of ways that you can begin to see only if based on an understanding of the nature of the code of the network.
Our choice is not between regulation and absence of regulation. The code rules. Either it implements values, or it does not.
Either it allows the development of freedom, or it limits it. Either it protects privacy, or it promotes monitoring.
Thus, the fundamental question is not that of regulation of cyberspace or not, but whether the civil society has a role or to choose and, therefore, to define how and if the values govern the network.
The issue is not to restrict the evolution of the technology or the market, but rather to know the consequences of regulatory decisions, through a system that is designed to maintain a balance between interests, on the basis of a constitutional approach. As stated by Lawrence Lessig:
“Our first response Should be hesitation. It is proper to let the market develop first. But as the Constitution checks and limits what Congress does, I know too Should constitutional values check and limit what a market does. We Should Test Both the laws of Congress and the product of a market against These values. We Should questioned the architecture of cyberspace as we questioned the tails of Congress. “
Then, the problem is to ultimately identify “constitutional” rules able to continuously assess the issues posed by innovation and technology and to take relative decisions with a legitimized and shared method. In this regard, moreover, it is emerging a new innovative wave for the generation of platforms that have this function, composed by a code, rules, and an interface that favor suitable behaviors to perform this function. For this purpose, until when there will exist a neutral Internet below the platforms used by the population connected online, it will always remain possible the emergence of new platforms governed by new rules. In the depths of the network, programmers and innovators continue to build different forms of interpretation of reality, and therefore new options of connected-cohabitation, including those on the ways companies take political decisions.
In this complex scenario, therefore, Italian Academy of the Internet Code proposes itself as a meeting place where – thanks to the efforts of academics and civil society participants – the instances of the different carriers of interests at stake could find a proper balance. Aside from the issue of the rules, then, there is – just as essential – that of digital literacy and educational use of the Internet as a driving force for the development of the administration, and the professions and the economy (big data, e-government , e-commerce, small and medium-sized online enterprises, etc.). To this end, the Academy aims to develop the training of various social categories involved in the issues related to the advent of digital technology, from the use of technologies, to their use for social, institutional or commercial purposes, to the protection of rights online.