Yes to the seizure of the CEO’s smartphone on the basis of generic keywords
The measure concerning Milleri’s mobile phone has been upheld; Luxottica’s appeal has been rejected. The claim that criteria such as surname or telephone number were not sufficiently selective has been dismissed
Key points
The central role within the company’s organisational structure played by the chief executive and his obvious and direct involvement in the main financial transactions justify a seizure of smartphones on an extremely broad, almost all-encompassing scale. A key factor in this regard is the Public Prosecutor’s Office’s reference to extremely vague keywords, albeit accompanied by a more specific timeframe for data extraction.
The story
The Court of Cassation, in judgment no. 27086 of the Fifth Criminal Section, filed yesterday, dismissed the appeal by Luxottica against the review ruling which had upheld the seizure of the mobile phone of the chief executive, Francesco Milleri, who is under investigation for market manipulation and obstruction of supervisory activities in the public prosecutors’ inquiry into alleged collusion in the takeover bid for Mediobanca by MPS.
In Luxottica’s view, the criteria identified could have led to the indiscriminate seizure of financial data, commercial and industrial secrets, and other confidential information. Indeed, when setting the keywords to be used for the information search, the Public Prosecutor’s Office specified terms lacking any selective capacity, such as the surname of the suspect whose mobile phone was seized, or the suspect’s telephone number itself, or the name of the company of which he is chairman of the board of directors, or ‘agreement’ or ‘accordo’. These terms, such as the suspect’s surname or their telephone number, which, as Luxottica points out, tend to appear in all messages on the seized telephone and are therefore likely to result in the indiscriminate seizure of all messages and all data stored on the digital medium.
The position of the Court of Cassation
The Court of Cassation emphasises, first and foremost, that – contrary to what has been claimed – the review court could have amended the search terms indicated by the public prosecutors to make them more restrictive and, if anything, more in line with the proportionality principle. However, in the Court of Cassation’s view, the review order does not reveal a lack of reasoning in concluding that the keywords, including those contested by the defence, ‘were suitable for ensuring a search targeted solely at data of investigative interest, as they were consistent with the subject matter of the investigations by virtue of the role played by Francesco Milleri within the Luxottica group and the financial transactions under investigation’.
