Since the days of The Pirate Bay, the practice of “obscuring” foreign sites to “prevent crime” has spread. First, a judge did it, now directly the criminal justice police
As of last January 2020, in Italy, there are evidences of “premptive seizure” of websites signed by judicial police officers and not, as one would expect, by a court or – in exceptional cases – by the public prosecutor.
Although under certain conditions, this is allowed by the law, in the case of websites this is dangerous for the right of defence and the victims of the crime, because it removes a grave decision from the preemptive control of the judge, leaving it in the hands of the Judicial Police.
The preemptive seizure is a rule that allows the court to order the removal of an asset (houses, cars, bank accounts, and so on) to prevent the prosecution of a crime. As it is a very afflictive measure, the law states that the prosecutor (i.e. the investigating magistrate) asks the judge (who controls him) to authorise this action. Therefore, the system provides for a double-check: the investigating magistrate collects evidence and submits it to the judging magistrate, who, if he considers it well-founded, issues the preventive seizure decree. In cases of urgency, on the other hand, it is the public prosecutor who can directly order the preventive seizure, but then inform the judge in a short time.
So far, nothing strange, because these are activities controlled directly and preventively by the Judiciary power. But a modification of the rule on preemptive seizure has shifted downwards the power to issue the seizure order in cases of urgency and attributes it also to the Judicial Police (whose principal role is to execute the orders of the Public Prosecutor).
This handover from the Public Prosecutor to the police realises an inversion of the preemptive controls’ flow. Instead of the magistrate, it is the Judicial Police to decide, in the first instance, whether to affect the right of the parties and only later comes the control, which could be resolved, by the competent magistrate, in the affixing of a stamp which gives a laconic “confirmed” without further investigation.
After this long, but necessary, premise on the preventive seizure, we come to the subject of the obscuration of the Internet sites.
In 2008, the Court of Cassation, dealing with the Pirate Bay case, ruled that concerning websites the legal notion of “seizure” could also be understood as a “obfuscation” carried out by ordering internet providers to intercept the connection requests of their users and block them.
Both in legal terms but especially in technical terms, this statement is highly questionable.
“Sequestering” means taking something away from someone, while “obfuscating” means – at best – intervening on an operator’s DNS to make the site unreachable for everyone, except for those using different DNS, VPN or other systems. A bit like saying that to make something disappear I turn my back, so I don’t see it anymore.
But since – unlike the speed of light – the law is decided by a show of hands, the result is that since 2008 “obfuscating” sites located abroad has become a method never again questioned.
But – and let us finally come to the point – why is the fact that the preventive seizure is executed by the judicial police a problem?
When a complaint concerns an Internet site – especially if it is a fraud – it is necessary to make a series of verifications on the location of the server, on the registrant of the domain, on the “flow” of the money and on other elements which can be essential to identify the guilty party.
If, on the other hand, the “seizure by obfuscation” becomes chiefly a police matter with no prior court assessment, the result is to warn the criminal that he has been discovered well in advance. Thus he is forewarned and has the time to disappear or at least cancel evidence of guiltiness.
In this way, the prosecutor gets the double result of reducing the possibility of prosecuting the culprit and, consequently, to denying justice for the victim.
Moreover, given the increasing number of crimes committed through the Internet, it is also understandable that the traditional mechanism (prosecutor asks the court, who issues the decree, who returns to the prosecutor who has it executed through the judicial police) works poorly and that it is necessary to find a way to work more efficiently.
But this cannot allow the exceptionality set forth for by the law (unavailability of the judge or prosecutor) to become the rule.