Criminal Investigation and Privacy in Italian Law

Abstract

The law regulating criminal investigation both legitimates and limits the government’s use of power, and privacy is one of the most prominent issues in this process. This paper analyses criminal investigation in relation to privacy in Italian law, with particular focus on privacy-related safeguards and limitations to criminal investigation. As part of a large-scale project on privacy protection in the 21st century, together with similar country studies, it will facilitate comparative legal analysis of criminal investigation, and help to better understand privacy, as the forms and scope of privacy protection in criminal investigation law tell us something about how privacy is conceptualised. After an introduction on Italian criminal procedure, investigation powers are discussed that reflect limitations grounded in the protection of places, persons, things, and data, with particular attention for search and seizure, covert online searches, visual observation, and location tracking. The overview demonstrates that criminal investigation powers are largely under-regulated in statutory law, which has to be compensated for by case-law and triggers extensive doctrinal debates. What emerges from case-law and particularly the doctrinal debates on privacy protection is a strong emphasis on the capacity of individuals to shield parts of their private life from others’ access or cognition. The cornerstone of this protection is the home, as spatial projection of the person, but it also comprises, for instance, protection of conversation space. While some authors emphasise a shift in importance from secrecy or seclusion (through access control) to reserve (through broader mechanisms of regulating information flows), the former remain important. The paper concludes that doctrinal debates on topical investigation methods demonstrate a continuous search for a sustainable normative framework to assess the intrusiveness of criminal investigation in a world of increasing mobility and datafication. Through proposals for new normative concepts such as informatic privacy and a right not to be localised, in combination with strengthened attention for the right to anonymity, Italian doctrine seeks to help protect the underlying value that people should be able to develop and manifest their personality without undue constraints, which is ultimately what, in the Italian normative framework, privacy protection seeks to achieve.