Category: Digital investigations and Forensics

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Child Pornography And Computer Crime Still a Criminal Offense in Italy

Several misinformed Italian blogs are currently claiming that the Renzi-led government just passed a draft-legislative decree making child pornography and computer crimes no more a criminal offense.

This is not true because what the government actually did was setting the principle that as soon as a crime is punished with a jail term up to five years AND the judge thinks that the crime is of “minimum damage” then either the prosecution or the trial must end. To put it different: only “serious crimes” are going to be tried in court.

One may argue over the ethic or legal acceptance of the notion of “petty-vs-serious” difference (as Cicero use to said, what matters – and deserves the maximum punishment – is the act of killing, not the fact that you killed one man or hundred people) but this legislative decree only turns into a law what already happens on a daily basis in the Italian courts: a confession of failure, in other words.

 

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The (defunct) Data Retention Directive Still Causes Harm

Notwithstanding the Data Retention Directive has been bashed by the EUCJ Ruling, there is a wide agreement on the fact that its national implementation might still be valid if not in contrast with the main Data Protection Directive.

Just yet, neither the Italian Parliament nor the Data Protection Authority ran the “stress test”, thus leaving ISPs into a void of uncertainty.

Furthermore, the news is new as today, there is a case where the actual providing of Internet access whose contract terminated back in 2010 has been challenged in court by the former customer. Under the Italian Supreme Court jurisprudence, in this case it is the ISP who must provide the evidence that the agreement has been fulfilled. But, guess what? Under the strict (and wrong) interpretation of the Data Retention Directive this ISP deleted the log files and now has problem in supporting its defense.

True, keeping the traffic data for legitimate purposes (such as legal defense) is allowed by the Data Protection Directive.

True, the Data Retention Directive can be interpreted as an exception that doesn’t overrule the Data Protection Directive.

True, an ISP has more than a chance (in theory) to successfully support its choice of keeping the traffic data for legal defense purposes even exceeding the mandatory term seth forth by the DRD.

But all this means fighting an all-round legal battle, explaining to the Court that the traffic data have been legally retained and are, thus, valid evidence, standing against a possible Data Protection Authority investigation, and so on.

To put it short: a waste of time, money and resources, that could be spared if only the Powers-that-be had dedicated a fraction of their time to solve this riddle, instead of toying with this Internet Bill of Right nonsense.

 

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Data Protection and Right of Defense. Stating the Obvious

Yet more evidence that Data Protection is not an absolute right. On the contrary, as the Italian Supreme Court decision n. 7783/14 said 1 a few days ago:

the interest to the protection of personal data must step back when confronted by true defense needs and other legally relevant interests, such as the fair and coherent enforcement of the right of defense in court.

  1. Unofficial Translation ↩
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The Impact of the Data-Retention ECJ Ruling on the Law Enforcement Activities

From the Law Enforcement perspective, the ECJ ruling that on Apr. 8, 2014 declared invalid the Data Retention Directive didn’t harm its investigation to such a greater extent as somebody has claimed. There are, indeed, other legal tools that can be used to fit the purpose of getting traffic data of interest.

First, ISPs and telco operators might still retain traffic data for other legitimate purposes and for longer periods than the six months “sponsored” by the ECJ. This can happens either with the consent of the customer (for marketing and commercial purposes) or without (in case the traffic data have to be retained to meet under a statutory term (in Italy, ten years) the legal obligation to provide evidence to the tax authorities that the billed services have actually been provided and that the ISP is not involved in a money laundering activity. Thus as soon as some data – though not all the one retained under the now defunct DRD – are available, a prosecutor can always seize it.

Second, the Budapest Convention on cybercrime allows the public authorities to issue a “data-freeze” order to avoid the deletion. Again, this might be a second best solution, but it is currently working and viable.

Third, the national Data Protection Authorities have the power, under the Directive 95/46, to issue orders to “customize” the implementation of this legal instrument so to match the requirements of the ECJ, thus legally keeping alive, though maybe partially, the intrinsic admissibility of the data-retention as such under the current European Data Protection legal framework.