There has been an escalation in the pressure exerted on prosecutors concerning the seizure of mobile phones, devices that now hold the entirety of a person’s life. An amendment agreed upon by the majority seeks to bolster the bill initially submitted at Palazzo Madama by Forza Italia senator, Pierantonio Zanettin from FI. The proposed change aims to introduce an early check by the judge on the data acquisition activity that is ordered by public prosecutors. This early intervention is designed to better safeguard the privacy of the individual under suspicion and any third parties involved in the proceedings.
The amendment doesn’t stop there. It also envisions providing stronger assurances during the data acquisition phase. It does this by allowing the defense and the suspect’s technical consultants to participate in the data duplication process. This involvement enables them to raise any issues before the trial stage. Furthermore, the proposed amendment stipulates that only information deemed relevant should be included in the procedural file. It also mandates that all correspondence, such as email exchanges and conversations via messaging apps like WhatsApp, is subject to the same rules of preservation and usage as more traditional wiretaps.
The amendment was tabled this morning by the rapporteur, Sergio Rastrelli, a senator from Fratelli d’Italia. The new text introduces a new article into the code of criminal procedure, 254 ter, which covers the ‘seizure of IT or telematic devices and systems, digital memories, data, information, programs, and communications, along with IT correspondence sent and received.’
In situations where it is impossible to wait for the judge’s decision due to an emergency, the public prosecutor is authorized to order the seizure via a motivated decree. If the prosecutor fails to order the return of the seized items, they must request the judge to validate the provision and issue the expected decree within forty-eight hours. Within five days of the seizure report being filed, the public prosecutor must inform those involved in the investigation, including the person from whom the items were seized, and the person who would have the right to their return. They must also inform the person offended by the crime and the relevant defenders about the time and place set for the duplication of the devices or of the digital memories in seizure. After analyzing the contents, even those acquired remotely, the prosecutor must seize only data, information, and programs strictly pertinent to the crime, while adhering to the criteria of necessity and proportion.
For the seizure of communications, conversations, or computer correspondence sent and received, the rules that apply to the preservation, use in other proceedings, and the prohibitions envisaged for actual regulated telephone wiretapping apply. The computer data are kept until the sentence or criminal decree of conviction is no longer subject to appeal. However, interested parties can request its destruction to protect confidentiality from the judge who ordered or validated the seizure. In addition, the defenders and the party’s technical consultants have the right to participate in the duplication operations and to formulate observations and reservations. Some concerns about the text have been raised by the Democratic Party, specifically about the potential weakening of prevention tools for corruption crimes and the fight against the mafia.
