Smartphone, the third party may also challenge the seizure
Challenge admissible even by non-owners. But it is not enough to argue that the mobile phone contains sensitive data in the abstract
by Giovanni Negri
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Even someone who is not the owner of the smartphone may lodge appeal against seizure by the judicial authority. However, the commonplace that the mobile phone makes the repository of important segments of the owner's life does not in itself legitimise a challenge. In two separate recent judgments, No. 15010 and No. 15894, both by the Third Section, the Supreme Court clarified the legitimacy of challenging the seizure of a mobile phone.
Opposition to the taking of evidence
In its first pronouncement, the Court of Cassation emphasised that in the case of probatory seizure of an asset, such as a mobile phone, the interest of the appellant does not reside solely in the removal of the real lien, resulting in the restitution of the property itself, but also in opposing the acquisition of evidence, which can be extracted from it, such as the data contained in the mobile phone that can be used, against the appellant, in the trial on the merits.
The essential datum is thus constituted, for the Court, by the fact that whoever appeals aspires to the seizure, as an outcome from which derives, also for him, a concrete utility, also in the form of the elimination of a prejudice, referable "to a subjective legal situation protected and recognised by the legal system and not only subjectively assessed as such in a factual way, perhaps in relation to a range of situations involving family relationships, affective and economic collaterals, which do not give rise to specific recognisable legal positions directly affected by the constraint of non-liability".
The appeal by the co-defendants is then admissible because, as emerges from the seizure decree itself, the telephone was considered indispensable evidence for the ascertainment of facts, in confirming the identification of certain suspects and highlighting their role in a criminal association context.
Security and sensitive data
In its second judgment, the Court of Cassation highlights howthe owner of sensitive data contained in computer or telematic documents who intends to challenge a seizure order is always obliged to attach to the appeal a concrete and current interest in their exclusive availability.
