Technological development has to go hand in hand with the “sense of limits’, to avoid – Hanna Arendt wrote in” Vita Activa “wise – men« to become creators apparatus appendices technological”. Ie slaves. The problem, he added, is that “the scientific-technological apparatus growth makes the sense of limits survival increasingly difficult.” Reflections dating back to the 60s of the last century but dramatically present. The technology, for example, has also entered strongly into judicial investigations, making them more effective but with all its potential for invasiveness in the sphere of personal freedom. Evidence so far confined to one article of the Criminal Procedure Code (189), and called “atypical” because it matters not, today, or are becoming, ordinary investigative tools because of the incessant technological development. But the “sense of limits” goes hand in hand? “The potential of this new investigative border have become so extensive, pervasive and sophisticated that only the law can define its proper limits, effectively ensuring a sphere of absolute inviolability for honest and exploiting them instead, against the organized crime of the mafia and terrorist »replies Nello Rossi, Advocate general at the Court of Cassation Prosecutor’s Office, the historic leader of the democratic Judiciary, landed at Palazzaccio by prosecutors in Rome where, as added, coordinated the pool on the economic and computer crimes.
the atypical tests
for decades we discuss wiretaps and balancing of the constitutional interests at stake (assessment of criminal responsibility, privacy, information). But “that” the debate is already exceeded with respect to the potential of new investigative technologies, which allow you to capture sounds, images, data. Everywhere. This is the case of the now famous Trojan, computer viruses that turn the devices with which we live habitually – smartphone, tablet, PC – sensors in as many agents of all our communications, written, audio, visual. But it is also the case of electronic stalking through satellite tracking, detection of movements through telephone cells, intrusion in social networks and so on. Not to mention the investigations on the bodies: from coercive radiological investigations to alcohol testing, toxicological examination to the removal of organic samples perhaps unbeknownst concerned, as happened in the trial for the murder of Yara Gambirasio, where Massimo Bossetti was framed by examining the DNA of an organic sample taken without his knowledge during a police raid in which he was tested for alcohol.
the Big brother nightmare
Here, this is the “new frontier of the investigations.” Though reassuring and disturbing. Essential against the threat of terrorism and, therefore, for collective security, but also as to justify collective psychosis Big Brother or, more simply, to seriously threaten personal freedom, not only of those who are under investigation. “Freedom and dignity are the strict limits and insurmountable in using these technologies and their results. And that demands professionalism and related accountability for all those who handle them: police, pm, Judges. But also lawyers. And journalists “says Rossi. Who bluntly adds: “In the face of so invasive means, even the most intimate sphere, do not you come then to tell that there is a public interest in criminal also disseminate data irrelevant.”
Rossi It represented the Attorney general before the united sections of the Supreme Court when they discussed the Trojan. It has supported the usability, but only for crimes of Mafia and organized large-scale terrorist crime while the Court has them as being applicable to a wider sphere of criminal associations, highly structured, aimed at the commission of all crimes, including therefore the corruption. A decision that has made people talk, so much so that at the end of July an appeal of lawyers, party by the University of Turin, called it “creative” and urged the legislature to intervene in this delicate matter. The appeal did not fall on deaf ears: the Senate – where it is considering the bill to reform the criminal trial – the amendment presented by the Trojan Casson-Cucca speakers (Pd) that initially followed the Supreme Court was later reformulated by restricting ‘ a list of Mafia crimes, terrorism and those associations aimed to arms trafficking, human trafficking, drug. With the exception, therefore, of other crimes while serious, such as corruption.
“As serious and disturbing is the phenomenon of corruption is legitimate, in my opinion, that the legislature chooses to exclude this’ scope the use of computer and instead allow the “environmental” classic sensors, be authorized by the judge in private dwellings only if there is reason to believe that there is taking place the criminal activity. In fact -ragiona Rossi – while for the mafia and terrorists it can be assumed that they move and act in contexts almost “full” criminals, the corrupt live in much more heterogeneous environments; and the risk of making them, through computer viruses, carriers of instruments capable of indiscriminately intercepting a plurality of private homes of people totally unrelated to investigations may be very high and unacceptable. “
hard Deterrence
But even narrowing the scope of the new investigative technologies, there remains the problem of managing them. And not always the concern of a professional use of the mass of information collected can not be dismissed easily. On these issues the School of the Judiciary has already planned, in October, a training course.
Rossi insists on the role of the law and on the professionalism and integrity of operators as well as on the “tough deterrence, even with new incriminating norms, in against anyone who unlawfully disclose or reveal information that you do not need to process: simply must go to jail. ” That said, you can not waive the new means of the research sample, that “in many cases allow a mere” recovery “lost investigative efficacy by traditional wiretapping.” As you know – he said – “a series of communication channels of wide use – WhatsApp, Telegram etc – promise users the absolute impenetrability through encryption techniques of messages and their immediate destruction, making them impervious to eavesdropping traditional. It needed most. For example, faced with the shocking news of a terror that is still largely unknown, the slender thread of a cell phone number can lead to results of great value. “
This is why the investigation and evidence “atypical” (those “not regulated by law”) come in handy even with the barrier provided by the Article 189 of Code of Criminal Procedure “does not affect the moral freedom of the person.” “If we look at the facts, the use of surveys and atypical evidence has assumed an exceptional relief,” Rossi says. But they are always so indispensable? And even at the cost of endangering the freedom of communication and privacy of many others? “Either you accept the messages of the mafia, terrorists, of human traffickers and drug can run undisturbed on some news channels or trying to intervene in this disturbing reality. The real issue remains the strict management of results and rapid destruction of all that is irrelevant. “
The system is not without antibodies. First of all, the results of these investigations should be evaluated by the judge and his “free conviction” remains unsurpassed pillar; secondly, there are insurmountable limits in the acquisition of these trials, in part explained by the law and in part by legal principles. “And there is a general limit and end the investigations and trials atypical represented by respect for human dignity”, glosses Rossi. “If some catchments were taken with that infringes upon the dignity of the person mode, should be declared unusable in the process.”
The Human Factor
Eventually count men . “That will have to monitor and” control himself “and in deciding whether to use the investigative tool both in establishing its operational methods both in managing the often shocking evidence results. The law can and should say much about it but inevitably can not say everything, even for the relentless evolution of technology. To integrate the provision of the law must therefore be the human factor, the responsibility of the people who, in search of evidence, should have as imperative that the rights of suspects and even more than occasionally involved foreign entities. And that goes very much for advertising of the information gathered. ” And if some casual application of new techniques were to give body to the nightmare of Big Brother? “It would be a real boomerang. There would be a legitimate and understandable collective reaction destined to undermine the social acceptance of these instruments. “
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