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Regulatory status of lawful interception in Italy (“Sicurezza e Giustizia” – G. Nazzaro)

flag-itThis article is inspired by the recent directive on “Unique Tender” of lawful interception wished by the Minister of Justice. All the actions aimed at saving public finances and increasing the efficiency of the service are praised, but they need to be brought together within a coherent program, otherwise the risk is to destabilize an already ailing system. At the moment, after the latest movements in this area, there is a clearly an imbalance towards the purely technological aspect, in the negative sense, that leaves our country increasingly further behind with regards to the pre-requisite technical regulations.

Published in “Sicurezza e Giustizia” nI / MMXIII for the quarter January-february-March 2013

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nce again we find ourselves discussing interceptions, a subject of great media impact, and once again we notice the lack of technical and legal prominence that is given.  Although the code of criminal procedure in chapter IV, regulates interceptions as a means of finding proof, in terms of limits of admissibility, requirements  and formalities for the measure, execution of operations once the interceptions have been made, it does not add anything about how this tool should be used.  There is a lack of regulations about the efficiency and execution of interceptions. If we wanted to make a useful comparison, it is as if each of us presented a tax return, which we know is compulsory as it is required by law, but in our own individual ways, each according to our  own design and knowledge of tax matters.

It really did seem as if this time we were close to reaching a turning point, to making a systemic change. The Minister of Justice, in February of 2013, issued a directive requiring the unique race of interceptions. Nothing could be more normal if it weren’t for the fact that the first difficulty is to even find this directive, in which we could better understand the concepts and applications of the terms “Unique” and “Tender”. Aside from the lack of an explicit reference to the technical annexes that generally make the directives explicit, the report on the Ministry’s web site states that the directive is “the result of  constant monitoring of the relevant item of expenditure which adds to savings arising from the flat rate payment of remunerations to phone operators“. The report states that the directive “was based on the conclusions of the  ministry based working groups[…] The participants of the technical group agreed unanimously to have the procedure for awarding the contract for interception services kept secret for obvious and well understood privacy and security needs “.

After due consideration however, it is difficult to understand precisely what these “understandable” requirements for secrecy are, given that the current situation has been determined over time,  by a number of quite unclear factors, which have prevented the arrangement of a correct  system of interceptions. In fact, an important contribution to the subject  dates back to 1999, when with the inter-ministerial Decree of September 21 a working group was established, consisting of representatives from the Ministries of Communications, of Justice and of the Interior, which had the responsibility of operating in the field of network security and  protection of communications in support of regulatory and administrative measures. The working group studied the needs, in terms of technical resources and legal support for a “safe” evolution of telecommunications services, the nature and extent of the relationship between Public Administration and telecommunications organizations. Then came the need to transform the Working Group into an “Observation Group”. This was  established by the inter-ministerial decree of January 14, 2003. The Working Group, before  becoming a Permanent Observation Group,  laid out the “directory (list)” containing an indication of the services to be provided to the judicial authorities and a list for the remuneration of Telecommunications bodies for the services provided, which was then emitted in the form of M. D. on April 26, 2001 (published in the Official Gazette No. 104 of May 7, 2001).

Thus, given the lack of “obligations” with regards to technical procedures used  and communicated to the Judicial Authorities (still present), the devices installed at the CIT offices of the public prosecuters office were of the selfsame companies that had arranged the adjustments for wiretapping telecommunications operator networks. The consequence was that these companies monopolized the equipment rental market, resulting in indiscriminate increases in costs. The directory therefore appeared, to the participants of the Working Group, then as it still does today, as the only solution to give initial, preliminary regulation to the sector. To understand why such regulation still does not exist  we quote a passage from the hearing of Judge Pietro Saviotti (Assistant Prosecutor at the Prosecutor’s Office in Rome, and member of the Editorial Board of this magazine, who sadly passed away on January 10, 2012), conducted on September 13, 2006 by the justice Standing Committee II of the Senate concerning the survey on the phenomenon of interception “in the Observation Group we tried to pass the principle, that the payment of a price for each single task is simply a remuneration of costs, living expenses, and that mandatory performance [omissis] were not activities which could derive a profit[omissis]. I do not know if this has happened or not. We also wrote an “Inventory” of compulsory services, which in principle laid out all activities that could be carried out, the times, the levels of security, the efficacy of devices used and a list of fees for these mandatory services “.

Certainly the main aim has been partly forgotten over time, as evidenced by the Finance Act No. 191/2009 which allowed for free printouts of traffic histories for use by the judiciary, expecting that the principle would represent not only a stop to profit from something that is compulsory by law, but would also support eventual requests for the improvement of the investigative tools that the judicial authority had.

Judge Saviotti continues then in the Senate hearing “Fate desired that the list was approved via the administrative path, whereas Inventory was objected to, rightly so, I think,with regards to some aspects.  The objection was that it could not be approved by inter-ministerial decree, but should necessarily be subject to a legal approval via primary legislation. For this reason the project entered the circuit of the legislative offices of the Ministries of Justice, Interior and communications, and the inventory was never actually approved.

The real underlying cause of the current situation was thus the complicated practicability of the legislative offices of the three Ministries involved. This is paradoxical, since to this day the tasks that can be performed in terms of “performance requirements”, are still not listed, i.e: the services that the Italian telecommunications Operator is obliged to provide the Italian judicial authority, such as wiretaps and historical traffic tabs, and SLAs – the delivery times for these services. Yet they are still carried out; instead prices have been established. It would be a bit like going to a restaurant and knowing how much is a first course costs but not knowing what it will be and how long it will take to be served.

This brings us to the present day, where the “Stability Law” No. 288 of December 24, 2012 has repealed paragraph 4 of art. 96 electronic communications code, which anticipated the application of a mandatory performance list.

Nota integrative: The Law of December 24, 2012 no. 288 provided for the repeal of paragraph 4 of Art. 96 of the Electronic Communications Code, which provided for the application of the list of mandatory services, adopted by Decree of the Minister of Communication of April 26, 2001 published in the Official Gazette of the Italian Republic no. 104 of May 7, 2001 until the entry into force of the decree referred to in paragraph 2 of that Article 96 be amended as follows. On this point see: http://www.eliss.org/index.php/abrogato-il-listino-delle-prestazioni-obbligatorie/

The reason for this repeal can probably be found in the public notice that appeared a month later on January 25 2013, on the website of the Ministry of Justice “[…]  The funds allocated to cover the costs of tapping have been reduced according to the regulatory measure of 2012 by 25 million euros,such sum to be considered within the wider savings that should result from the initiative promoted by the Ministry, for the establishment of a single national competition for telephone, electronic and ambient surveillance . A top priority is to proceed with a national competition for the management of the telephone and wiretapping service. A saving of between 200 and 250 million euros per year is expected from this initiative, already included in the legislative decree  on the spending review. Meanwhile a first piece of wider savings strategy that is expected from the new interception services acquisition system, was passed via the stability law of December 2012, which introduced the amendment to the code of communications and established by Decree of the Minister of Justice and economic development together with the Ministry of economy mandatory performances,  that the services telephone operators must make available to the judicial authorities will be precisely set out. The same Decree also established the arrangements for payment in the form of flat-rate annual fees, thus abolishing the previous price list. In the case of intervention of undoubted significance both in terms of skills, without reordering to procure tasks which more properly relate to the administration of Justice, both in the economic aspect, ensuring the possibility of increased programming, scaling and control of expenditure on these services […] “.

Perhaps now one of the possible meanings of the word “Unique”, referring to the aforementioned tender, may be clearer : a centralized purchasing system and expense management system for the Administration of Justice, as opposed to to the territorial model where the management is entrusted to the individual proxies. The question remains, however, as to the use of the term “Tender”, which was dissolved by the European Commission, that on June 21, 2012 gave Italy a formal notice for violation of Directive 2004/18/EC on public works contracts, supply contracts and service contracts, by the Italian scheme of allocation of contracts in the field of wiretaps (infringement procedure no 2011/4049).

The intention would seem to be that of  strong innovation and change. However, comparing the art. 22 of the law of stability with the art. 96  subparagraph 2 (amended by  said law) of the Communications Code, it is clear that the enactment of the Decree on so-called compulsory performance was already written into the same code. The major difference is not only that the activities to be carried out at the request of the judicial authority are no longer referred to by the term “Inventory”, (which better suits the definition of a list of tasks with descriptions of technical characteristics and SLA) but also that an entity as well authoritative as the Ministery of the Interior and thus the entire State police, was replaced with the Ministry of Economy and Finance.

At this point it may seem obvious that  the most recent actions in the field of interception are all unbalanced towards the purely technological aspect, distancing our country further and further from the pre-requisite technical regulation. Legitimate and shared the problem of trying to reduce the State debt and the current costs should be addressed with improved methodology and in order to cover the regulatory gap in a definitive manner: first conduct a thorough analysis of the current system as a whole and finally, via a qualified analysis, identify all the various interventions necessary in order to quantify the costs. Having clear objectives and knowing where to intervene, you might wish to see a real confrontation between the parties involved. A different approach, carried out by one of these parties and especially in sphere of control, could destabilize an already ailing system, without the need to involve withholding that, though usable, runs counter to the General principles of the administrative activities (Law No. 241 of August 7, 1990) who are in favour of transparency, participation and audi alteram partem, which are inspired by the independent Authority in this context constitute a model to imitate. Could this be the ultimate solution – create a national reference, an independent Authority of the so-called mandatory services (for Telco to Law enforcement) because, in addition to the quota problem, in the presence of technological innovations and new communication services will periodically need to see what adjustments to make investigative tools used by the Judicial Authorities, including the interceptions, and all stakeholders would be involved and finally a defined and qualified partner to turn to.© Giovanni Nazzaro