Judicial investigations and gathering of evidence in a digital, online context

It is commonly agreed that technological advances have had a great impact on the practicalities of criminal investigations, providing police and prosecutors with new kinds of electronic surveillance. As a result of changes in investigative techniques, new and complex problems have occurred, both in terms of respect of fundamental rights and in terms of being able to provide reliable evidence. Unfortunately, many legal systems are not well equipped to handle the issues raised by the merger of technological revolution and modern law enforcement. Indeed, novel electronic methods of investigation are usually unregulated either by legislation or administrative rules. Given the lack of legislative regulation, courts have often played a significant role in producing criteria for deciding when and how to regulate technological investigations, but they have failed to produce a consistent and comprehensive approach to such regulation. In the light of these premises, the vastness and complexity of problems raised by criminal investigation in a digital, online context suggest that the analysis should concentrate on some specific, novel techniques. Therefore, the paper has been structured into four sections. Part I deals with a general overview of different “surveillance technologies” currently in use in many jurisdictions. Part II and Part III examine main issues raised by technologically-assisted physical surveillance and, in more detail, by two specific methods of investigation: covert video surveillance and use of tracking devices, which allow a “real time” monitoring of activities and movements. Part IV concerns the use of detection tools. Part V aims to suggest some general parameters to cope with difficult issues raised by the use of the above-cited surveillance devices. The study is carried out adopting a comparative approach, taking as a model some common law jurisdictions (the US and Canadian jurisdictions), on the one hand, and a civil law system (i.e. the Italian system) on the other.