Computer crimes in the Supreme Court
by Lawyer Fulvio Sarzana of S.Ippolito, Sarzana Law Firm and Associates
The Supreme Court of Cassation intervenes on the appeal of the cassation lawyer on Computer Crimes and the use of the so-called Computer Captor, in a ruling dated mid-September 2020.
In particular, the appellant contested the use of the Trojan horse or computer spyware.
The second ground of appeal raised the objection that the images captured with the Trojan virus were unusable, with reference to counts C to F (possession and receiving of weapons, possession of narcotics), challenging in law the arguments contained in the contested order with reference to art. 13 Legislative Decree 13/05/1991 n. 52 converted with amendments by I. 12/07/1991 n. 152, a provision that pertains to the interception of communications between persons present. However, in the case of interception through the activation of a camera, the interceptor can only be legitimately used as a means of environmental interception pursuant to art. 266, paragraph 2 and paragraph 2-bis of the Italian Code of Criminal Procedure, without the possibility of other uses, in the absence of specific legal provision, as this involves the infringement of fundamental rights guaranteed by the Constitution; the further incriminating elements indicated by the judges of the preliminary hearing had also to be considered extraneous to the contested facts (such as the conversation between the appellant and his lawyer of choice immediately after the search of a third party's premises, which led to the discovery of weapons and drugs.
The Court of Cassation responds that:
The second ground raises the question, in relation to the serious indications of guilt for certain crimes, of the usability of a computer interceptor (so-called Trojan virus) in an electronic device; in particular, it is argued that "the Trojan's activities beyond wiretapping between people present by activating the microphone" (p. 10 of the appeal) – and, therefore, the interception of images by activating the camera – would be precluded, in the absence of a specific legal provision, • it is also not possible to "resort to the formula of atypical evidence to bring into the trial material acquired in violation of an individual right" (p. 11). In reality, the defense itself recognizes that the interceptor "can in fact be legitimately used as a means of environmental interception" and that the serious indications of guilt essentially consist of the images taken by the front camera of Porcaro's telephone, as well as the voices and noises captured by the device itself. In this case too, it is appropriate to refer to consolidated jurisprudential principles. The Supreme Court clarified that: – audiovisual recordings fall within environmental wiretaps – video recordings of behaviors not having a communicative content made in a public place, open or exposed to the public, constitute atypical evidence pursuant to art. 189 of the Italian Code of Criminal Procedure, with the consequent inapplicability of the rules on wiretaps. Instead, communicative behaviors, which can be intercepted only with the prior authorization of the Judicial Authority, must be understood as those aimed at conveying the content of a thought through words, gestures, physical expressions, or other attitudes capable of expressing it. In the specific case, the wiretap must be considered to be of an environmental nature, since, as can be seen from the text of the contested ruling, the recording system (microphone and cell phone camera) reproduced the words and gestures of Porcaro, immortalized in close-up in the place where the weapons and drugs were found and seized, and therefore the computer recording device was used within the limits of admissibility set forth in art. 266 Code of Criminal Procedure.
Computer crimes in the Supreme Court
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