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Will the “black-out kidnappings” end after Telegram?

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The Turin Public Prosecutor’s Office ordered the seizure of a No Vax Telegram chat with over 40,000 subscribers. To implement it, the magistrate announced an international rogatory because Telegram is outside the Italian jurisdiction, and the judiciary does not have the power to issue orders against foreign subjects. This is so true that while waiting to formalize the rogatory, the Turin Public Prosecutor’s Office sent the provision to a Telegram account called “voluntary collaboration”, evidently hoping for a “gesture of responsibility” from the platform.

The news, in itself, should not make news because when it is necessary to carry out criminal proceedings abroad it is essential to follow the path of letters rogatory. However, the Turin case is the (correct) exception to a (wrong) rule that is continually applied by the Italian prosecutors and, sometimes, directly by the judicial police: that of the “seizure by blackout” made famous ten years ago by the case The Pirate Bay.

Faced with the need to seize the famous bit torrent engine and the difficulties (real or supposed) of contacting the Swedish authorities, in 2008 the Bergamo Public Prosecutor’s Office conceived a bizarre interpretation of the rules on seizures (later confirmed even by the Supreme Court) based on to which ordering Internet Providers to intercept and block the DNS queries of Italian users to certain domain names was the equivalent of seizing a server.

However paradoxical and technically meaningless, this interpretation has become the standard operating procedure of Italian investigators and telecommunications operators are still continually the recipients of “blackout” measures of network resources located abroad, including – just to be clear – also Telegram channels.

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If we compare the state of affairs with the Turin case, then it is inevitable to ask ourselves who is right between the Supreme Court and the Turin Public Prosecutor’s Office and therefore what is the legally correct choice also and above all for the protection of Internet users.

Performing a seizure of data or other information in a “surgical” way – that is, going to the site to acquire the data and stop the service – is certainly the correct way to operate because in this way the suspects are hit and the continuation is interrupted of the crime. Less acceptable – indeed, unacceptable – is indiscriminately intercepting the traffic of all Italian users by mapping those who connect to certain network resources (not necessarily for criminal purposes, as evidenced by the articles written by journalists who have “infiltrated” the groups No Vax). To date, it does not appear that the judiciary or the police forces collect the IP numbers of users who attempt a connection to certain resources and then report them and investigate them (or at least register them). However, nothing prevents this from happening and the only way to be sure of the contrary is to stop with the “blackouts” to follow the path indicated by the Turin Public Prosecutor with the announcement of the international rogatory request.

Now, for intellectual honesty you don’t have to hide behind a finger. It is clear that the rogatory is a complex tool to manage and, above all, designed in times and for times that are completely incompatible with the number, speed and geographical location of the events that occur on the network.

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Difficulties and delays, however, cannot be the justification for forcing the interpretation of rules that do not say what the jurisprudence wanted, at all costs, to make them say. Therefore, if the tool to quickly seize platforms or content located abroad is lacking, let it be created, instead of creating gaps in the interpretation of the criminal investigation system.

The problem of how to investigate in transnational contexts exists, it is real and it is not easy to solve. However, there are already tools such as the European investigation order that allows the prosecutors of a Member State to obtain collaboration from the others with a procedure that, if it were not also managed with paper, would also be sufficiently streamlined. Similar changes should concern the letters rogatory (at least those relating to data and content) and the internal procedures of the investigative offices for the management of these obligations. Therefore, relatively little would be enough to obtain effective results in compliance with the rules, but this does not happen.

Explaining in detail why we find ourselves in this condition would be complex, but one observation can certainly be made: cultural and technological backwardness, in the world of justice, is no longer tolerable.

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