Preventive wiretapping between protecting rights and combating international terrorism

The Senate Standing Committee on Justice has delivered the conclusions of its fact-finding investigation on the subject of wiretapping, which has been ongoing since December 2022: among the most notable observations is the Commission’s opposition to an expansion of the tool of preventive wiretapping.

The overall purpose of the survey was to delve into the most critical aspects of the wiretapping phenomenon, both in light of the latest reforms and, most importantly, the impact of new technologies, “both for the prevention of organized crime and for the need to introduce protections beyond the tool of the computer capturer (trojan) or other particularly invasive devices“.

The preventive wiretapping

Of particular interest are the reported considerations regarding preventive wiretapping, especially in light of the current geopolitical scenario and the resulting aggravated risks of international terrorist activity in Europe.

In particular, the Commission clearly spoke out against the strengthening of this tool, accepting the demands of some of the hearings, who pointed out that the numerous proposals to limit wiretaps ordered in criminal proceedings should not risk leading instead to greater use of preventive wiretaps and – as a result – to fewer protections for individuals[1].

The survey’s conclusions, on the contrary, reaffirmed that “the protection of privacy and the individual sphere of citizens can only be ensured through appropriate guarantee procedures, necessarily embedded within judicial proceedings” before a third and impartial judge.

In this regard, the criticism made by the Union of Criminal Chambers in a memorandum filed at the hearing was valued and cited: “The extension of preventive interceptions would result in the abstract possibility that the public authority, in the expectation of identifying news of crime on which to carry out subsequent investigations, would be authorized to listen to the communications of anyone in general, with the sole consequence of their non-usability in the trial[2]“.

Indeed, the concern shared in the survey’s conclusions is that the procedural guarantee of unusability alone is insufficient to limit the use of prior wiretapping as a means of evidence-seeking (removed from a judge’s subsequent review).

In the Commission’s view, “instead, the perimeter set by Article 15 of the Constitution under which the limitation of the principle of inviolability and secrecy of correspondence and all forms of communication can only take place by virtue of a reasoned act of the judicial authority must be reaffirmed.”

The conclusions drawn at the end of the investigation are particularly relevant in light of recent changes in the global political environment, which underscores the current need for preventive wiretapping to combat international terrorism.

The opinion expressed by the Commission stimulates the debate of scholars, jurists and the intelligence community, aimed at the confrontation and composition of different instances: in fact, today it is even more evident that a (complex) balancing of the needs of prevention and protection of the community with the safeguarding and respect of constitutional rights is necessary; and this in order not to deprive the public authority of a bulwark for the security of citizens and – at the same time – to avoid that a widespread and indiscriminate use of the instrument generates undue compressions of the fundamental freedoms of individuals.

To learn more, download the survey findings here.

 

 

References

[1] See https://www.camerepenali.it/public/file/Documenti/Documenti_Giunta_Caiazza/2023-01-12-Note-UCPI.pdf.

[2] Ibid, a criticism also reiterated at the hearing by Union President Adv. Giandomenico Caiazza, see https://www.senato.it/service/PDF/PDFServer/DF/426472.pdf, p. 10-11.

 

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