(Foto da http://poliziadistato.it)   The scope of this article is to examine how the Legislature, in virtue of the Law, 3rd August 2007, N° 124, and that of the successive Law 18th March 2008, N° 48 are intended to change the procedures in matters of confiscations, taking into account, on the one side, of the changed reality derived from the huge technological progress in computer science and, on the other, of the absolute needs specifically attached to the necessity of supplying an adequate protection of the data covered by the State Secret. It deals, obviously, with two aspects distinctly different one from the other, but however, imposes a review of the institution of the probative confiscation, in light of the changes put forth in the Articles 254, 254 bis, 256, 256 bis and 256 ter of the Code of Criminal Procedure

Therefore, in our analysis, we must start from Art. 254 c.c.p. noting how the first two paragraphs of the article have been substituted by Art. 8. Para 4. of the above cited Law N° 48 of 2008 (1) " . Whereas previously, the regulations were limited to provide for the possibility of proceeding to the confiscation of “letters, envelopes, packages, valuables and other objects of correspondence” the actual text allows the possibility of effecting confiscation even if those objects result “forwarded electronically”.
The Italian Legislature, through the Art 254 modification, has not only allowed an adjustment to the changed reality deriving from the progress in the computer field, but has also ended the doubts about the ascription of the electronic mail within the concept of correspondence, inasmuch as it has responded positively to similar questions, gathering a wider meaning of this term, and has extended the confiscation regulations to all communications forwarded electronically, allowing, in this way, the Judicial Authority to use said instrument in relation to whatever message is sent by electronic means (2) " .
Consequently, now the probative confiscation of correspondence forwarded electronically is provided for through the operators of telematics or telecommunications services (3) ".
In this way, the legislation finally takes into account the technological progress in this sector and focuses attention also on the most recent services provided by the Post Offices, among which, that of online dispatch through forwarding of the correspondence by the sender, by means of e-mail at the postal service, which prints on paper what has been received and takes care of the forwarding in the traditional forms (4) " .
Obviously, also a different approach on the part of the Judiciary must accompany the change in legislation.
Prior to the legislative modification, the doctrine had, for example, complained of the recourse to generalized measures of confiscation of the entire body of a computer or of the overall hardware, critically pointing out that often it would be sufficient to intervene with more targeted measures which involved the apprehension of specific data (5) " ; said approach was also shared by the case law more alert to similar issues, which underlined the necessity of avoiding, within the limits of possibility, the subjection to probative confiscation of all the hardware or indeed, of the whole computer – censuring, therefore, the adoption of measures to impose indiscriminate intervention and excessive intrusion, such as to cause useless, serious and unnecessary injury to persons affected by the measure of confiscation, whereas a bit stream image of the hard disk , instead, appeared more than sufficient (6) " .
Proceeding with our analysis, it should be noted – in order to further clarify the sense of the above observations and the real importance of the innovations introduced – that the confiscation of the electronic mail should not be confused with the uptake, in real time, of the flow of data, including also the electronic mail, realizable through the very different mechanism of the telecommunication interceptions (7) " .
Extending the possibility of confiscation to the correspondence sent electronically has induced the Legislature to intervene, in a modified way, also in relation to the powers vested in the Investigative Police during the course of their confiscation operations.
The present Art. 254 c.c.p. shows how the right to privacy and the duty of the Investigative Police to abstain from opening the objects of correspondence acquired during the confiscation, must also apply with reference to the electronic mail, in this way, stopping the approach which supports that the said type of correspondence is not subject to protection by the same guarantee provided for paper correspondence, and corroborating, to the contrary, the conclusion intended to show that the electronic mail messages are subject to the same rules of privacy that protect ordinary mail.
A part of the doctrine stated, moreover, that the correspondence contained in an electronic file be completely assimilated, at least, from this aspect, to the letter sent in a sealed envelope (8) " .
With Art. 254 bis c.c.p. (confiscation of computer data from suppliers of computer, telematic, electronic and communication services)) introduced by Law N° 48 of 2008, the Legislature has, furthermore, provided a new, further hypothesis of confiscation, concerning computer data held by a service provider, including that of traffic or site.
As far as the term” traffic data” is concerned, it is necessary to refer to Art.1, Para 1 lett. b) of the Decree Law 30th May 2008, N° 109, where it is defined as follows: “ any data processed for transmission of a communication over an electronic communication network or the billing thereof, including the necessary data to identify the subscriber or user”.
The concept of “location data” is, instead, supplied by Art.1 Para 1 lett. c) of the Decree Law N° 109 of 2008, according to which, it must be regarded as such “each and every data processed in an electronic communication network which indicates the geographic position of the terminal equipment of the user of an electronic communications service accessible to the public”.
Art. 254 bis c.c.p. incorporates the requirements of Art. 19, third Para, of the Convention of Budapest, which obliges the contracting parties to legislate in order to make effective, on the part of the Judicial Authority, the power to seize the data contained in computer systems already the subject of search, and in order to impose the formation of a copy of the data thus acquired and the adoption of measures to safeguard their integrity (9) " .
Said measures seek to reconcile the need of the search for evidence with the necessity to guarantee the computer and electronic service providers the possibility of continuing to ensure the regular providers of the services (10) ".
Judicial Authority can acquire the data by copying them on proper support through a procedure that ensures compliance with the originals, together with the impossibility of modifying them.
In this way, an implicit call is made to the best practices to effect a bit stream image, and therefore, a copy of the original data, on which the operators can carry out the analyses of the various bytes without altering the clone of the original (11) " ; .
At the basis of said procedures there is the recognition of the volatile and alterable nature of the digital data, likely to be affected by involuntary conduct intended to cause the phenomena which would alter the content (12) " .
Let us pass now to the examination of the Article 256 c.c.p. concerning the order (and the corresponding duty) of presentation, we must observe that its first paragraph has been modified by the Art.8, Para 6, Law N° 48 of 2008. As a result of the change thus made, the order of presentation can be extended also to the data, to the information and to the computer programmes.
Furthermore, it was provided that upon request by the Judicial Authority, the data, the information and the computer programmes must be immediately delivered “also through copy of them on appropriate support”.
Albeit the text of the legislation underlines the possibility of an order of delivery regarding the originals, a letter in conjunction with the Articles 254 bis, 259 and 260 Para 2 c.c.p. makes clear the favour shown by Law N° 48 of 2008, towards the extraction procedure of copy of the data or of the computer programmes, in order to reduce the invasiveness of the confiscation (13) " .



The confiscation of documents covered by the State Secret

It has been observed in doctrine how, in relation to the theme of the relationships between confiscation and Secrets, the Legislature has followed the approach in outlining the inter-relationships between testimony and Secrets (14) " .
The concept of the State Secret, previously obtainable from Art. 12 of the Law, 24th October 1977 N° 801, has been redefined by Art. 39 of the Law 3rd August 2007 N° 124, according to which the State Secret covers the acts, documents, information, activities and any other item, the diffusion of which could cause damage to the integrity of the Republic, also in relation to International agreements, to the defence of the Institutions established by the Constitution at its foundation, to the independence of the State with regard to other States and to the relations with them and to the military defence of the State.
In this way the Legislature has delineated three distinct ambits: the first concerns the preparation and the military defence, the second, the external security of the State and the third, the internal security and the protection of the relations with the other States (15) " .
In accordance with Article 39, Para 3, of the Law N° 124 of 2007, a further requirement is necessary for the subsistence of the State Secret, insofar as the diffusion of secret information must be of the kind that would seriously damage the sphere of protected interests (16) " .
On the basis of Art. 39, Para 11, Law N° 124 of 2007, however, it was excluded that – information, documents and things relative to acts of terrorism, or subversives of the constitutional order, or to the criminal acts referred to in Articles 285, 416 bis, 416 ter and 422 of the Criminal Code – can be subject to State Secrecy.
If the Judge considers that he finds himself in this latter hypothesis, he rejects the opposition and notifies the President of the Council of Ministers. Nevertheless, the President of the Council of Ministers may – with a statement of grounds – confirm the Secret, under Art. 66, Para 2, disp. Att. c.c.p, if he considers that the facts, the information or the documents do not concern the crime of the proceedings in course.
It has been affirmed that in this case the power of confiscation becomes paralyzed by a decision which relates essentially to an assessment of merit, and not to a political evaluation, which should be the sole responsibility of the Judicial Authority.
The President of the Council of Ministers is, in fact, vested with the power of evaluating the pertinence of the evidence; he is, in fact, entitled to sustain that the information in relation to which the Judicial Authority requests the adoption of an unavailability constraint is not relevant to the proceedings in course (17) " .
It should also be observed that compared with the past, the danger of eventual misuse in these matters on the part of the Government is, today, attenuated, thanks to provision of a more effective instrument of political control on the measures of confirmation of the State Secret (18) " ; in fact, in virtue of Art. 40, Para 5, Law N° 124 of 2007, in the case of confirmation of the opposition of the State Secret, the President of the Council of Ministers is required to notify the Parliamentary Committee for the security of the Republic, the composition of which, unlike that provided in relation to the previous Parliamentary Control Committee, ensures equal representation of both the majority and the opposition.
While in the past, the CO.PA.CO. (COmmittee of PArliamentary COntrol) appeared to be an unsuitable instrument to make an effective verification, also because it seemed extremely improbable that said Committee would disagree with the decision which opposed the application of the State Secret and would therefore decide to invest Parliament with the consequential political considerations("19")' name=" (19) , the present structure (five deputies and five senators, nominated in proportion to the number of the components of the parliamentary groups, but guaranteeing equal representation between the majority and oppositions) means that the Committee can carry out its functions of control with much greater effectiveness (20) " .
Should the existence of a State Secret be opposed and the Judicial Authority informs the President of the Council of Ministers, asking the confirmation of the subsistence of said Secret, the term of sixty days fixed by Art. 256, Para 4, c.c.p. for the confirmation must be understood as peremptory; consequently, if the President of the Council of Ministers furnishes a purely interlocutory reply, not followed by a definitive confirmation within the date set by the Legislature, it is considered that in such case – the set time now being expired – that the right to oppose the exception of secrecy is now null and void (21) " .
Under Law N° 124 of 2007, if the subsistence of the State Secret is, instead, confirmed by the President of the Council of Ministers, and for the definition of the process the acquisition of the data covered by the State Secret appears essential, the Judge must declare not to proceed for the existence of the State Secret. The confirmation of the State secret privilege by the President of the Council of Ministers inhibits the Judicial Authority from acquiring and utilizing, also indirectly, information covered by the Secret.
The Law N° 124 of 2007 has further provided, through the introduction of the Art. 256 bis c.c.p. a particular mechanism to allow the Judicial Authority to acquire documents at the offices of the Information Services for the security or at the Offices of the Department of Information for the security, if those in charge of the relative offices do not contend the subsistence of a State Secret.
In light of an approach designed to take into account the specificity of certain “places” and of the need for adequate safeguards in this regard (22) " ; the power to act has been outlined, through a specific order of presentation, for the on-the-spot examination of the above mentioned documents.
Although the Legislature has not provided specific modalities of access, in order to safeguard the secrecy of the location of the offices of the DIS, the AISE or the AISI, it is considered that Art. 256 bis c.c.p. precludes the direct search of the items required to be exhibited, which would entail the search of the premises of these offices (23) " ; moreover, the third Para of said legislation expressly provides that if the Judicial Authority has justified reason to believe that the documents, the acts, or the items exhibited are not those requested or are incomplete, it must necessarily inform the President of the Council of Ministers “to provide for the delivery of additional documents, items or records or, if it is necessary, to confirm the inexistence of further documents, items or records”.
The Legislature attributes the possibility of acquiring only those documents that result strictly indispensable to the purposes of the investigations; this clause of indispensability is evidently connected to the particular importance of the interests underlying this topic (24) " .
In such a case, if “classified documents” are acquired, the precautions provided by Art. 42, Para 8 of the aforesaid Law N° 124 of 2007 must, however, be adopted (25) " .
On the basis of the said legislation, if the Judge orders the exhibition of the classified documents – to which the State Secret is not opposed – the acts are delivered to the applicant Judicial Authority, which must care for the preservation with such modality as to permit the protection of privacy, guaranteeing, at the same time, the right of the parties concerned to access them without extracting copies.
Instead, with regard to the acquisition of documents originating from foreign information agencies, with non-disclosure constraints, the transmission of the request to the President of the Council of Ministers is foreseen, until, after having taken the necessary initiative with the foreign authority, he will evaluate what procedure to adopt.
In this regard, the provision is correlated to Art. 39, Para 4, Law N° 124 of 2007, on the basis of which the President of the Council of Ministers can affix the State Secret on the acts, documents and items in question, even though acquired abroad (26) " .
The authorization to acquire the document or, to the contrary, the opposition of the State Secret, must be expressed within the term of sixty days; if not, the administrative principle of tacit consent applies (27) ".
As far as the Art. 256 ter c.c.p. is concerned, it should be remembered that under this legislation, the President of the Council of Ministers authorizes the acquisition of the acts, documents or other items for which the State Secret has been pleaded or confirms the subsistence of the said Secret within thirty days from the transmission of the relative material; the doctrine has critically noted how said term appears inexplicably halved compared to that provided for by Art. 256, Para 4, c.c.p. (28) " (as well as to that outlined by Art. 256 bis Para 5 c.c.p.) at the acquisition of the acts. Also in this case, if said term lapses uselessly, without either authorization or, the opposite – the confirmation of the State Secret – the criteria of tacit consent applies. Although the affixing of the Secret can be advanced with a verbal provision, it – to be effective – must be documented, and in particular, must bear the handwritten signature and have a firm date(29) " .The power of the Decree of secrecy can be legitimately exercised also with reference to acts or documents which, although not directly compromising the purposes protected by the State Secret, appear potentially eligible for the acquisition of further information which could result, on the contrary, clearly damaging to said purposes. In this regard, for example, it was found that where it could appear prejudicial for the military defence is the knowledge of the locations where certain infrastructures are found, such as listening sites or launching bases. The need to prevent the acquisition of knowledge of this kind could involve the provision of much more extensive secrecy constraints, concerning among other things, even the cadastral records from which such information could be obtained (30) " .