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Smartphone search: can you confiscate a cell phone?

What happens during a smartphone search?

We have already mentioned the hypothesis in which you are involved in a computer search, but today we’ll talk more specifically about a case of smartphone search in criminal matters.

First of all, let’s make it clear that the jurisprudence has supported and definitively stated the admissibility of the seizure of a suspect’s smartphone for probation purposes.

Cellphones, as we already know, are essential for each one of us: we use them to call and send messages, to surf the Internet, to store contacts, sensitive data and personal information.

It almost look like a sort of hybrid between a secret diary and a vault.

The information stored inside your smartphone are protected by privacy, so no one can have free access.

Nevertheless, this protection gives way to greater demands for justice and security, which means that you can well witness the bypassing of their privacy by law enforcement and judicial authority, in the presence of well-founded reasons.

How to get to the seizure of a smartphone

Imagine being accused by an alleged victim, that has printed the text of emails, sms and WhatsApp messages coming through your email address or your telephone number and has brought their content and their paper copy to the prosecutor.

In this case, for investigation purposes, the public prosecutor needs to check directly on your smartphone the content of the communications brought to his attention and to extract a computer copy.

This operation is necessary in order to achieve a more reliable proof than the one presented by the party through a mechanical reproduction of a printer.

In this way, the court would have access to your mails, calls, messages, photos, videos, files, not to mention instant messagging services, such as WhatsApp, Messenger or Telegram.

So, it may seem a real intrusion in your private life and a violation of your privacy and, just because of it, the italian code of civil procedure has established that phone interceptions arranged by the judge and carried out by the judicial police are eligible only if they are carried out in accordance with fundamental guarantees.

In particular, they must be serious crimes, for which are provided at least five years of imprisonment, or for crimes against the Public Administration or for those related to drugs, explosives or smuggling, but also for crimes such as insult, threat and usury.

When it comes to a smartphone, the Supreme Court considers that the smartphone of a suspect can be seized, without particular caution to protect the privacy of the owner of the device.

In this way, they’ll proceed with the acquisition and extrapolation of the device data and then return it back to its owner.

In a ruling of 2019, the Court of Cassation has specified that the messages on Whatsapp, the sms and the email acquired during the smartphone search are considered as documents and do not fall within the concept of telephone interception or correspondence, thus evading the relevant guarantees.

Indeed, it’s not a phone interception, given that this requires the uptake of a communication flow in progress, while in the case of seizure and search of smartphones there is a retrospective acquisition of data on the device memory.

Following the extrapolation and to ensure the integrity and reliability of the extracted data, a forensic copy of the data found on the mobile phone is released so that it can be used as forensic evidence.

Here’s that the smartphone seizure is legit in order to extract the full copy of the data to be used as a source of evidence.

Considering them as documents, the acquisition does not require the precautions and procedures provided for interception and seizure of correspondence, let alone interception.

Rights of a suspect

The person that is involved in a search and seizure of their smartphone, is not obliged to give the access codes for their smartphone, in accordance with the principle that a suspected or accused person is not obliged to provide evidence of criminal liability.

That’s the reason why the device owner can give the access codes for their cellphone and social profiles, specially if they want to co-operate with the authorities, but they’re not obliged to do it nor their behaviour can be considered as a potential guilt.

Even when this “intrusion” is realized, no matter how legitimate it may be, you can have a way to defend your privacy.

For example, in the case where you’ve installed and used Crypty Talk on your smartphone, indeed, the conversations made with this app cannot be seen by anyone other than the person who has the access codes: so, just the owner of the smartphone.

This doesn’t happen with other apps: in this case, it’s possible to obtain and view all data from the communication apps through a clone of the smartphone.

In conclusion: the seizure is possible in the case of security and justice requirements, but there is no obligation to facilitate the finding of information on the device.

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