N.B. Background information for this post are available here. ?
The Bergamo Court has overruled the preemptive seizure order with a decision that, instead of solving the problems arising from the first decision, creates worst issues. The Bergamo Court, in fact, has overruled the seizure, but only on the legal basis that “seizure” cannot be interpreted as “traffic hijacking”.
But the court did not, as it should have done, evaluate first of all the lack of Italian jurisdiction. By not doing so, the Bergamo tribunal has created a dangerous case law that, by reciprocity, allows any foreign magistrate to investigate and take to court an Italian citizen, with the additional absurdity that even in the absence of any evidence that a crime has been committed, a legal prosecution can be based on hypothetical “statistic calculation”.
Furthermore, by asserting the validity of the public prosecutor investigation, the Court has de facto established the automatic liability not only of internet providers, but also of search engines, and the possibility of using, as an investigative tool, data and information with no solid ground.
And also, by saying that even if preemptive seizure has been wrongly enforced , it is ?in theory compatible with ?sect.14 D.LGV 70/20003 (EU E-commerce directive implementation, dealing with ISP liability), the Court of Bergamo on the one hand allows “owners of ideas” to push for an additional and barbaric copyright law amendment while, on the other hand, it reaffirms an obvious error of interpretation of law by affirming the role of ISPs as “sheriffs of the net”.
It happened last Feb. 27, 2008. All of a sudden, Italian Parliament approved the enforcement of the Budapest Convention on Cybercrime.
Rumors say that Italy will be the next country to create a nation-wide DNA forensics database. A bill has recently been proposed, and the enforcement of the Schengen III Agreement seems closer than ever.
A side issue arising from the Peppermint affaire is the relationship between criminal and civil trials rule of evidence.
In a criminal investigation, access to ISP owned traffic data and log files is possible only with a public prosecutor search and seize warrant. One seized, these information are strictly confidential and cannot disclosed – even to the defense counsel – before the trial starts.
The very same data – as the Peppermint affaire shows – can indeed be obtained by a private entity alleging a civivl – not criminal, then – copyright infringement, just asking the civil court to force an ISP to disclose information.
This is a paradox of the Italian legal system, since criminal action is supposed to be the only reason to allow the breach of constitutional rights, while the a civil case only gives the court limited powers. This common-sense rule has been subverted when talking about copyright. Is it fair or acceptable?
If an US law enforcement officer wants to tap an American citizen internet account, the officer must play by the books. But If the US officer wants to wiretap an Italian citizen whose account is hosted in the US by an US company, does the USofficer need to respect the US regulations, or, since the target is a foreigner, he’d be free to play as he wishes? As far as I know, the answer is a sound “no”: the law enforcement officer must always comply to the US regulation (at least because the company that hosts the account is american and it is established on the US soil.)
Continue reading “CALEA and US based foreign e-mail accounts. A deadly lock”