Seizure of smartphone: Court of Cassation sets rules for personal data and privacy

The Court of Cassation establishes stringent criteria for the seizure of smartphones as evidence

With a recent ruling, the Court of Cassation has established new criteria for the seizure of smartphones containing personal data as evidence. The decision, contained in ruling no. 15010/2026 of the Third Criminal Section, represents a turning point in the delicate balance between investigative needs and privacy protection. The ruling, still in the process of being published, confirms an established principle: the seizure of a smartphone is legitimate only if it is proportionate, specific, and aimed at acquiring the data relevant to the proof of the alleged crime.

The specific case and the principle of proportionality

The case examined by the Court of Cassation concerns the seizure of a smartphone as evidence in the context of an investigation for drug trafficking in association aimed at dealing (arts. 73 and 74 DPR 309/1990). The Preliminary Investigations Judge (GIP) had ordered the seizure of the device, but the Court of Cassation clarified that such measure cannot have exploratory or indiscriminate purposes. The Court reiterated that the seizure of data contained in computer devices must be justified by criteria of proportionality, specificity, and targeted selection of data.

Privacy protection and the principle of non-exploratory nature

The ruling emphasizes the importance of respecting the principle of non-exploratory nature, stating that the seizure of evidence cannot be used as a means of searching for evidence of a crime, but only to confirm it. The European Court of Human Rights (ECtHR) has already established that massive and indiscriminate access to data and documents contradicts the principle of proportionality and Article 8 of the European Convention on Human Rights, which protects the right to private and family life.

Criteria for a legitimate seizure

The Court of Cassation has outlined the criteria that must be met to make the seizure of a smartphone legitimate:

• The search for data (text messages, audio, video) must be targeted and contextualized.
• A "technological filter" based on keywords must be applied to select only the relevant contents.
• The evidentiary purpose must be concrete and related to the alleged crime.

Guidelines for public prosecutors

The ruling provides precise guidelines to public prosecutors regarding the motivation of the evidence seizure decree. In particular, the public prosecutor must illustrate:

• The reasons why it is necessary to order an extensive and comprehensive seizure or, alternatively, the specific information being sought.
• The criteria that must govern the selection of the computer material archived in the device, justifying any temporal limitations of the data of interest.
• The reasonable timeframe within which the selection of data will be carried out, with the consequent return even of the digital copy of the non-relevant data.

The importance of privacy in a digital society

The ruling is particularly relevant in an increasingly digital society, where the smartphone represents one of the main sources of evidence. However, from a privacy perspective, it is also one of the most invasive tools, as it contains a vast amount of personal data, such as communications, photos, emails, chats, and banking data. The need to define precise boundaries and methods for searching for digital evidence is fundamental to prevent the evidence itself from being unusable, nullifying investigative efforts.

Implications for future investigations

The Court of Cassation's decision has important implications for future investigations. On the one hand, it guarantees greater protection of the privacy of the accused, on the other hand, it imposes a more rigorous and selective approach on public prosecutors in the acquisition of digital evidence. This change in perspective aims to balance investigative needs with fundamental rights, ensuring that precautionary measures are proportionate and justified.

Protection of personal data and the GDPR

The ruling fits into the broader context of the protection of personal data, in line with the GDPR and the principles established by the ECtHR. The need to ensure the proportionality and specificity of investigative measures represents a significant step forward in the protection of fundamental rights of individuals in an era dominated by technology and big data.

Conclusions

The ruling of the Court of Cassation no. 15010/2026 represents a fundamental reference point for the future of digital investigations. By establishing stringent criteria for the seizure of smartphones as evidence, the Court of Cassation has reiterated the importance of balancing investigative needs with privacy protection. This approach ensures that digital evidence is acquired in a legitimate and proportionate manner, respecting the fundamental rights of the accused and ensuring the effectiveness of investigations.