by Wendy R. Leibowitz
A lawyer in Washington, D.C. has been retained as chief legal adviser to an Italian government agency to help determine how Italy's laws should be adapted to accommodate the Internet's growth and the convergence of various media on the Net. James J. Halpert, a telecommunications partner at Piper Marbury Rudnick & Wolfe, has worked on Internet policy issues since 1995. He advised the U.S. Congress on the Communications Decency Act, the Digital Millennium Copyright Act, and an Internet gambling bill. (The gambling bill failed, he notes.)
But now, he's just returned from Naples, Italy. In the shadow of Mount Vesuvius, he sat as chief legal adviser to Agcom, the Italian agency with sweeping powers over communications media. "They have jurisdiction over the Internet, broadcasting, publishing and telecommunications-- they're truly a convergence regulator," he says. "They control all the ways you would reach the Internet, and some of the content." Agcom is a perfect body to confront the phenomenon of convergence, he believes--it oversees the melding of print, broadcast, entertainment, and telecommunications media on the Internet. The 25-member advisory committee will conduct a comprehensive examination of all issues related to the Internet, from domain names to cybercrime, electronic commerce to consumer access, and issue a report at the end of next year.
The contrast in legal cultures was as striking as the food was good, says Mr. Halpert. Italy, which is about the size of California, comes from a civil law tradition, which rests on statutory regulations, rather than a common law (court-created) world. "There's an explicit regulation of the press, for example, which one would not see in the United States," says Mr. Halpert, who came to Internet issues through his work on media and First Amendment questions. But, while there is no First Amendment limiting what the Italian government can do in addressing content issues on the Internet, there is a need to harmonize regulations with the European Union, he says.
Communcating in Italian is not a huge challenge, says Mr. Halpert, who can read and understand Italian well. "Speaking is a challenge," he says, though he is fluent in French. The lawyer, then, is in listening mode, which is good at this stage of the proceedings.
"It's most interesting to see the differences in legal cultures," Mr. Halpert recalls. In the Supreme Court case, ACLU v. Reno, which challenged the "indecency" ban section of the Communications Decency Act, the Supreme Court justices said very clearly that the Internet should not be regulated in the same way broadcast waves are. But Italy does indeed regulate them similarly, and through the same agency. "It's fascinating--it opens different policy options," says Mr. Halpert. "You could, for example, impose free time restrictions or equal time requirements that would be unthinkable in the U.S."
In the United States, the discussion of requiring or restricting certain content is completely silenced by constitutional doctrine. "In Italy, the discussion is of policy, not doctrine," says Mr. Halpert.
The other major difference? Meetings in Italy "include a significant lunch," he laughs. "Americans are all work, with maybe a dinner afterwards, but meetings here include very good food and conversation." At the first meeting, there was much talk about other legal issues, such as comparative family law, which drew on the expertise of the other members of the committee.
Mr. Halpert is one of only two Americans on the Internet advisory committee. The other is Tony Gardner, a lawyer in the London office of Weil Gotshal & Manges, who is half-Italian. "The regulator sees the Internet as a global phenomenon, and is interested in getting a global perspective in formulating policy," says Mr. Halpert. In a year, when the report issues, that perspective will come to light.