with the scientific collaboration of
ISSN 2611-8858


Intrusive surveillance

The Hidden and Continous Control as Evidentiary Notion: Theoretical Premises for a Systematic Analysis

This paper focuses on new IT evidence research tools in criminal investigations. After a first pars destruens, where the main inconsistencies of the current regulatory and scholarly framework are highlighted, the Author offers a more constructive approach, trying to outline the common features of very intrusive activities, as such deserving to be surrounded by several safeguards from a de iure condendo standpoint.

New IT-based Investigations and Protection of Fundamental Rights. The Case of Spy-software

Despite a wide diffusion, only in recent times the attention of the interpreters has been drawn on the spyware, a malware with high intrusive skills, which is installed in a target device and allows to perform a lot of investigation activities. The legislator does not seem to have fully considered the magnitude of these potential uses, having recently disciplined the spyware only as a tool for audio surveillance. Due to the uncovered areas (which relate to some of the most intrusive skills of the spyware), the discipline introduced by the legislator does not appear to be adequate, considering the need of protection of the fundamental rights at stake.

Transnational Access to Electronic Evidence Between Effectiveness and the Need to Protect Rights

This paper aims to examine the most important issues involved by transnational access to electronic evidence. The latter is increasingly important due to the problematic interaction between the limitation of State jurisdiction within national boundaries and the dematerialization of data usable as evidence in criminal proceedings. The work mainly deals with the recent proposals of EU Regulation and Directive on European Production and Conservation Orders, aiming to analyse also their interference with the current law on judicial cooperation in criminal matters, especially with regard to the European Investigative Order. Some of the main problems concerning the relationship between the European Union and third States concerning transnational access to electronic evidence, are then briefly examined, and followed by some final remarks on the new model of direct cooperation with service providers established outside the State jurisdiction.

Il principio di proporzionalità nell’era del controllo tecnologico e le sue implicazioni processuali rispetto ai nuovi mezzi di ricerca della prova

The paper focuses on proportionality with respect to electronic surveillance, often used in criminal investigations. Firstly the matter is analysed from a supranational standpoint, taking into account the legal framework and the relevant case-law; secondly, the analysis goes deeper into the Italian legal system, showing how the notion of proportionality is sometimes misunderstood.

Privacy with Regard to Interceptions in Orlando Enabling Act

In the enabling act about interceptions, contained in the Orlando legal reform, the Parliament has drawn some well-structured legislative parameters in order to protect privacy in the best possible way. These parameters are inspired on the guidelines made by the public prosecutors’ offices. The cross-reference to the enabling act and the circulars allows to highlight some of the main issues. The lawmaker has to take care of these problems in order to avoid inconsistencies and constitutional doubts. In particular, the choice to entrust to the public prosecutor (and, firstly, to the police) the selection of conversations to record can penalize the defensive needs; moreover, this choice, without trial sanctions, can make the need to protect privacy useless. After the dialogue between the public prosecutor and the police, the recorded and cutted off conversations could remain; their potential and unlawful publication lacks of a suitable sanction.

The Legal Framework on Preventive Wiretapping for Counter-Terrorism Objectives

This article analyses the dynamics relating to the use of tools proper of the criminal law proceedings for different objectives such as the prevention of the commission of certain types of crimes, with a main focus on the regulation of preventive wiretapping.

Privacy Protection in the Era of New Technologies: the Case of I.T. Sensors for Telephone Wiretapping Operations Against Terrorism

Acts of terrorism use the intricate and widespread network of information communicated through computer systems as an important source: the control and management of this flow of communication is, therefore, an essential prerequisite in the fight against the terroristic phenomenon and in the field of investigations within the criminal law process. In this context, we see the use of investigative tools such as IT sensors risk placing a considerable strain on an individual’s right to privacy, due to their markedly invasive power. Most European countries have, therefore, found themselves coping with the challenge of balancing between the effectiveness of certain technologies and the traditional protection of fundamental freedoms; an unequalled heritage of Western legal culture. Italy is not exempt from this challenge. In this brief article, I seek to re-evaluate, especially in light of a recent judgment from the Joint Divisions of the Court of Cassation, the national situation while also taking into consideration the solutions adopted in other European Union countries.