Digital rights: towards a single European identity

Abstract

When we speak of “identity”, we most often refer to the “new rights”, most of which can be traced back to the essential aspects of the person as a psychophysical unity, elaborated by the Constitutional Court and outlined by it, through the combined provisions of Articles 2, 3 c. 2, and, of course, 13 of the Constitution, as fundamental rights of the person. Increasingly often, however, in the changed historical context characterized by the increasingly pervasive presence of technology, we speak of “digital identity”. In fact, this is one of the main digital rights provided for by Legislative Decree No. 82/2005, bearing the Digital Administration Code, so-called CAD. As is well known, this normative text contains a section, the Digital Citizenship Charter (Art. 3-9 CAD), which defines the set of rights and duties of all citizens in relation to the use of information technologies in their relations with public administrations and public service providers. The Digital Citizenship Charter is a minimum set of rights, which must be guaranteed by all entities, with the aim of simplifying the complex relationship between citizens, businesses, and public administration. Public administrations must therefore ensure that users can effectively exercise these rights, also to avoid sanctions and liability. With specific reference to the right to digital identity, Art. 3-bis CAD affirms the right of “anyone” to access online services offered by public administrations and public service providers through their digital identity and the IO App (single telematic access point referred to in Art. 64-bis). This right has already been matched for years by the obligation of public entities to allow users to access online services through SPID and, after the extraordinary spread of this tool, also accelerated by the forced digitization that occurred downstream of the Covid-19 pandemic, also through the Electronic Identity Card (CIE). In the described context, there is an increasing need to turn to a supranational dimension, which, as is well known, is now more and more pervasive, especially in terms of the regulation of technologies and the protection of rights put at risk by the digital (think, for example, of the legislation on personal data protection, trust services, platforms and services and, most recently, artificial intelligence). The so-called eIDAS 2 Regulation establishes a European electronic identity and the related European electronic digital identity wallet system (EUDI Wallet). These tools, as currently outlined, do not appear to be substitutes for those provided by member states, but there is no doubt that the work being done by European institutions will have an impact on all domestic legal systems. Italy has already amended its domestic legislation to introduce the legal basis for the national wallet, the IT Wallet, which will be implemented as part of the IO App. The issue at hand raises many legal questions concerning the relationship between national and supranational regulatory sources, the relationship between the Authorities of governance, as well as the desirable expansion of citizenship rights toward an increasingly "European" and "digital" "citizenship." Due to the necessary interoperability between wallets developed by public entities and public and private databases for the implementation of the project, in addition to the benefits, there are also many risks that loom as the project develops