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Data, between the fetish of privacy and antediluvian rules

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Data, between the fetish of privacy and antediluvian rules

“We will be happy to cooperate as soon as we are notified of the prescribed measure, as per law”.

This is the phrase that, for over fifteen years, I have been using when I worked for a historic (and no longer active) telecommunications operator responding to requests for data acquisition from various police offices. “For urgent inquiries” they first sent simple faxes and then emails, PDFs without digital signature but, above all, without any provision of prosecutors or judges for preliminary investigations.

The answer, “we will be delighted etc. etc.” it provoked quite disordered reactions. Some “foretold” (as indeed it would have been their duty) to “come in person”, others were surprised by such an answer “because only you make all these stories” still others – over time, more and more to say the true – they were starting to send requests ultimately respecting the rules of the Code of Criminal Procedure.

The trend to acquire data quite quickly “Because we have no time to waste” did not stop. Every now and then, especially when there are incidents of some importance, requests for information about “anomalous traffic” coming from a specific IP or about the dynamics of facts for which no complaint has been filed and therefore on which no investigations can be made arrive, not even of initiative.

Seen from this side of the Atlantic, therefore, the indignation of the “vestals of privacy” provoked by the news that Google and Amazon could hand over data from their devices to the police in emergency cases. .

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To supporters no matter what of the right to block police investigations in the name of “individual rights” it should be remembered that in a Western democracy, criminal trials offer precise guarantees on respect for people’s rights. There is no privacy when it comes to bringing an offender to justice or exonerating an innocent person from the accusation of having committed a crime and, in any case, not all “invasive” tools are usable for every type of investigation. That, in practice, this is not always the case is another matter, but it does not change the substance of the reasoning.

Here because as a defense attorney, I can’t step back an inch in the face of a request to collect data – or evidence of any other type – without respecting procedural rules. It is called due process and it is in the Constitution, other than privacy.

At the same time, as a jurist, I cannot blame the carabiniere or the police officer on whose shoulders the barrel of investigative necessity stops subjected to antediluvian rules that make it complex and expensive to acquire data correctly. Squeezed, squeezed between the need to obtain the result and the bureaucracy of the forms, they arrange themselves as they can. Sometimes it’s good for them, sometimes it’s not. So much, then, we will talk about it at the trial.

The Pavlovian reaction of invoking the attack on privacy is wrong and dangerous because it distracts from real issues. Instead of carrying the privacy fetish whenever there are data in the middle, it would rather be the case to ask what is wrong – today – with the rules of criminal investigations and what can be done to make them adequate to the times and respect for rights in the process.

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These are, really, fundamental.

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