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Berlusconi: will the gagger be gagged?

Wiretapping has a special place in Italian democracy, and Berlusconi's attempts to limit its uses and impacts should be understood politically
Valentina Pasquali
5 July 2010

In what seems destined to become an increasingly heated summer season, a poisonous dispute over a controversial anti-wiretapping bill is turning into a proxy for Italy’s opposing forces to renegotiate the terms of the country’s political debate, whose liveliness has been cooled, for over a decade now, by the towering presence of Prime Minister Silvio Berlusconi.

On July 29th, Italy’s lower house of Parliament will debate and vote on a bill that, if approved, may strike a crippling blow to the independent powers of the judiciary and to the media. The bill, drafted by Berlusconi’s closest allies in Parliament and dubbed by critics “the gagging law”, aims to curb the use of wiretaps by law enforcement agencies, and would impose daunting restrictions on journalists reporting on crime.

While Italy’s center-left parties, together with the police, prosecutors and publishers, rally around the opposition to the bil, self-doubt is creeping in Berlusconi’s ruling coalition and a degree of open discomfort with his decisions is leaking out. Berlusconi still has the votes to come out on top. But with the bill hanging in mid-air for months, subject to never-ending amendments, and shuttling back and forth between the Chamber of Deputies and the Senate while it awaits final approval, its flaws -- and Berlusconi’s personal stake in it -- are increasingly difficult to hide, even for the Prime Minister’s most trusted operatives.

If passed, the bill would significantly raise the standards required to start a wiretap. Investigators would need to provide “serious evidence” of ongoing criminal activities for the authorization to be warranted. The bill would limit to 75 days the length of time a wiretap can run (18 months currently). At the end of the 75 days, investigators would need to reapply for a new authorization every three days.

For the media, the new law would forbid prosecutors from discussing with the press any aspects of an ongoing investigation, including matters that are already in the public domain. The bill would also punish journalists and publishers that choose to print or summarize or reference any part of a leaked wiretap. Reporters risk up to one month in jail and fines of up to 10,000 euros, while publishers may have to pay penalties up to 465,000 euros for each violation.

In short, the bill would significantly hinder the effectiveness of wiretapping, while also putting an end to the kind of extensive, sometime aggressive coverage that the Italian press can provide today on the country’s most high-profile criminal cases.

The right-wing ruling coalition led by Berlusconi has been pursuing the passage of the bill for months, arguing that the legislation is needed in order to protect the privacy of individual citizens from a judicial branch, and media, gone mad. The center-left opposition believes instead that this is yet another attempt by the prime minister to protect himself and his closest allies, at the expense of Italy’s democracy, from potentially devastating investigations into their often not-so-transparent dealings.

By all measures, Italy is the most wiretapped country in Europe. According to figures released by the Italian Ministry of Justice, 124,326 phone lines were wiretapped in 2008. In 2004, the German-based Max Planck Institute calculated that 76 out of every 100,000 Italians had their conversations eavesdropped into, well ahead of the Dutch (62) and of the Swedes (33).

By the same token, Italy is no ordinary democracy given the levels of government corruption and the pervasiveness of criminal organizations, the Sicilian Mafia only being the most popular. Against this backdrop, wiretaps have often proven to be an invaluable tool in the hands of investigators.

As for the press, considering the desperately slow pace with which the Italian justice system moves forward, unauthorized leaks have come to represent the only means to inform the public on issues of national interests that may otherwise never come to light. While Berlusconi claims that the law is aimed at reinstating the freedom of the Italian people to speak unreservedly on the phone, Francesco Pizzetti, the head of Italy’s privacy regulatory body, complained that the bill shifted the balance between press freedom and privacy “completely on the side of privacy,” thus creating “a danger to press freedom.”

Overall, some of Italy’s most successful attempts at probing the illicit activities of criminal organizations have originated in wiretaps, sometime serendipitously. Pietro Grasso, Italy’s widely respected National anti-Mafia Prosecutor warned that this bill would cripple the fight against the Mafia, making it particularly difficult to investigate money-laundering schemes. The bill’s proponents argue that in the prosecution of self-evident mafia-related crimes, authorities would be granted much wider leeway. The truth is that it is often by following the lead of seemingly marginal frauds, from tax evasion to minor episodes of corruption, that authorities have made their most important discoveries about the operations of criminal organizations.

Even beyond organized crime, wiretaps and subsequent leaks to the press have scored major successes in exposing some of the corrupt practices common among Italian officials .

In 2005, transcripts from tapped conversations brought down Central Bank Governor Antonio Fazio, who was heard rigging the takeover of an Italian bank, Banca Antonveneta, in favor of a domestic bidder.

In February this year, more wiretaps led to the political demise of Berlusconi’s former crony Guido Bertolaso, the head of the Civil Protection Agency. He is under investigation for receiving bribes in exchange for government contracts in the run-up to the 2009 G8 summit, originally planned in the island La Maddalena, off the coast of Sardinia, and then moved to the earthquake-ravaged city of L’Aquila, Abruzzo.

In May, the Minister of Industry Claudio Scajola was forced to resign after court documents of an ongoing investigation were leaked to a newspaper, which showed that the Minister had bought a large apartment in Rome with money provided by a builder that had been offered government contracts .

It is widely known that Prime Minister Berlusconi himself has not been immune from wiretapping-related scandals. Last year, Berlusconi was the subject of multiple wiretaps, whose transcripts, leaked to the press, revealed the Prime Minister’s rather lively sex-life.

Some fear that this, really, is the heart of the issue. Italy’s overuse of wiretapping and tradition of leaks to the press may need to be better regulated, but the suspicion lingers that this exceedingly rigid bill is only the most recent in a long series of ad-personam laws passed by Berlusconi’s government for the benefit of the [embattled prime minister.

Since the start of the legislative process, Italy’s ruling coalition has appeared to be united behind Berlusconi’s insistent efforts at curbing the practice of wiretapping.

The Prime Minister’s most recent show of force came just last week. An unwilling Speaker of the Chamber of Deputies Gianfranco Fini, under pressure by the Chamber’s leadership, was forced to schedule the debate on the bill for July 29th, squeezing it in between an urgently-needed vote on budget cuts – austerity measures meant to prevent Italy from falling into a Greek-style credit crisis – and the summer recess.

This was, from the get-go, a controversial decision, which, in the long run, may prove counter-productive for Berlusconi.

Giorgio Napolitano, President of the Republic, immediately signaled his disappointment, having asked only a few days before that Parliament prioritize moving forward with the debate on the economic crisis without getting distracted by matters that tend to poison the political climate.

Speaker Fini, echoing the words of the national anti-Mafia Prosecutor Grasso -- who spoke strongly about the consequences this bill would have on the ability of law enforcement to investigate organized crime -- urged everybody to reconsider certain aspects of the legislation and to come to an alternative arrangement.

On Thursday, two of Berlusconi’s staunchest allies also seemed to falter, at least partially. Renato Schifani, President of the Senate, indicated that, no matter what happens in the Chamber of Deputies over the summer, if there are amendments to the bill -- which there will be -- the Senate will not be able to pick it up again until after recess, therefore slowing down Berlusconi’s legislative agenda.

Umberto Bossi, Chairman of the Northern League, a populist anti-immigration party allied with Berlusconi’s People of Freedom -PDL, added that a balance will need to be struck between the right to privacy of individual Italian citizens and the need of law enforcement agencies to have the necessary tools for the prosecution of illegal activities.

This time, Prime Minister Berlusconi may just have over-reached. While his position, as well as his government, remains safe -- at least for the time being -- his decision to push for an accelerated resolution to the wiretapping controversy has not been warmly received, even by his closest allies.

On the contrary, a bill that was designed to help the Prime Minister close ranks within his coalition and put an end to a series of scandals that have jeopardized his government in previous months, seems to be sparking, instead, the renaissance of an independent public debate in Italy, revealing a few cracks even within the otherwise monolithic majority built by the media mogul-turned-politician.

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