On June 28, the Court of Cassation issued a ruling concerning the seizure of messaging stored in the memory of cell phones, smartphones, or any other electronic device, stating that the acquisition of such evidence must follow the rules governing the seizure of correspondence. Therefore, a warrant from the Public Prosecutor is required, and the Judicial Police cannot acquire it independently. The Supreme Court clarified that e-mails, WhatsApp messages, and SMS messages stored in the memory of an electronic device retain their legal nature as correspondence even after being received by the recipient.
The seizure procedure indicated by the Court of Cassation
The Code of Criminal Procedure, in accordance with the guarantees provided for by the Constitution, provides that the seizure of correspondence shall take place at the behest or under the control of the Judicial Authority.
In particular, it provides that when the seizure is carried out by a judicial police officer, he must hand over the seized items of correspondence to the Public Prosecutor, without opening or altering them and without otherwise becoming aware of their contents.
The judicial police are prohibited from having access to the content of the messages, while they are allowed to seize their container, which must be handed over to the judicial authority, which is the only one authorised to check their content, without the judicial police being able to access them on its own initiative.
The duties of the judicial police
The Judicial Police can seize the device without accessing its contents and hand it over to the Public Prosecutor. After validating the seizure, the Public Prosecutor, through a formal order, may authorize access to the smartphone’s memory and the extraction of the contents of the messages stored within it, by means of a technical expertise.
The exception
The Supreme Court has emphasized that the cited rule has an exception when, due to the passage of time or other causes, the messages lose any relevance in terms of confidentiality and transform into mere historical documents. In such cases, the document seizure procedure applies, which does not require specific formalities. The acquisition of these documents is legitimate through simple photographic reproduction, in the form of hard copies or included in police reports. It is not necessary to obtain a forensic copy for the purpose of their independent assessment.
Wiretapping rules cannot be applied
Wiretapping involves the covert interception, in real time, of the content of a conversation or communication in progress between two or more people by third parties who are not part of the conversation.
There are two conditions necessary for wiretapping. Temporal condition: the communication must be in progress at the time of its capture by the stranger, i.e. it must be caught in its dynamic moment.
This excludes the activity of acquiring the physical medium containing the memory of a communication that has already occurred and is thus in its static state. Method of execution: the acquisition of the communicative message by the third party must take place covertly, i.e. without the knowledge of the persons involved in the communication.
In the case of the acquisition of messages stored in the memory of the device, both of these conditions are lacking. As a result, such acquisition cannot be classified as wiretapping.
The guarantee of Article 15 of the Constitution
The freedom and secrecy of correspondence, to which the Court of Cassation has attributed to messages, are protected by the Constitution. Article 15 guarantees the freedom and secrecy of correspondence and any other form of communication, allowing for their limitation only by a reasoned decision of the judicial authority. The Supreme Court has clarified that this constitutional guarantee extends to all means made available by technological advancements for communication purposes, including electronic and digital ones.
The protection under Article 8 of the ECHR
The Supreme Court further emphasized that the jurisprudence of the European Court of Human Rights also supports this direction. The European Court of Human Rights has included under the protection of Article 8 of the ECHR email messages and instant messaging sent and received via the internet. In particular, the European Convention on Human Rights states that everyone has the right to respect for their correspondence.
The shift away from the approach that equated messages with documents
The ruling under discussion overturns the judicial approach that equated WhatsApp messages, emails, and instant messaging with documents. According to the previous interpretation, correspondence that had been received and read by the recipient was no longer considered a means of communication. Instead, it lost its nature as correspondence and became a simple document. As a result, emails, SMS, and WhatsApp messages that had already been received and stored on the sender’s or recipient’s computer or mobile phone were considered documents. Therefore, their acquisition in legal proceedings was not subject to the rules governing the interception of electronic or telecommunication communications, nor those governing the seizure of correspondence. Under this view, the Judicial Police could seize such messages without specific formalities.
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