Digital Privacy and Evidentiary Seizure: The Cassation Court's Directives (Judgment no. 9797/2025)

In the digital age, our personal data is invaluable. But what happens when sensitive data falls under evidentiary seizure? The Court of Cassation, with judgment no. 9797 of 2025, has clarified the balance between investigative needs and the right to privacy, outlining a path to protect one's confidentiality.

Sensitive Data Under Seizure: The Right to Confidentiality

Imagine your devices being seized in a criminal investigation. They often contain 'sensitive data' (health, private life). The judgment, which saw Mr. R. P.M. E. T. as the defendant and rejected the appeal against a measure by the Court of Liberty of Brescia, focuses on this delicate area. Evidentiary seizure is essential for the search for evidence (Art. 253 et seq. of the Code of Criminal Procedure), but for digital and sensitive data, the concern for the right to confidentiality (Art. 8 ECHR) emerges strongly.

In the context of evidentiary seizure of computer and telematic documents, the holder of sensitive data stored therein, who challenges such a measure also with reference to computer data already returned to them, is required to allege a concrete and current interest in their exclusive availability in order to allow the review judge to assess the actual existence of the proportionality relationship between the needs connected to the ascertainment of the crime and the sacrifice imposed on the sphere of confidentiality of the subject affected by the confiscatory measure, the assessment of which requires, based on the indications of conventional law, that regard be had to the type of sensitive data involved and the time necessary to select, from the acquired data, those actually useful for the investigations.

This maxim clarifies that, when contesting the seizure of sensitive data (even if already returned), you must demonstrate a 'concrete and current interest' in their exclusive availability. This allows the review judge to balance the need to ascertain a crime with your right to confidentiality. The balancing considers the type of sensitive data (e.g., health) and the time needed to select only the data useful for the investigation, avoiding indiscriminate acquisition. The Cassation Court requires specific argumentation highlighting why the deprivation of that data constitutes a disproportionate sacrifice.

Proportionality: A Beacon for Digital Investigations

The principle of proportionality is the pivot of this ruling. The intrusion into private life must be strictly necessary and limited. The judge assesses whether the 'sacrifice imposed on the sphere of confidentiality' is justified by the 'needs connected to the ascertainment of the crime'. This is crucial in the digital realm, where a device can contain years of communications and private information that is not relevant. The extraction of forensic copies and analysis must be targeted and respect the timeframes for accurate selection (Art. 8 ECHR). To ensure this balance, authorities must respect:

• Specificity: Seizure targeted at relevant data.
• Timeliness: Rapid selection and analysis.
• Judicial Control: The judge verifies proportionality.
• Return: Irrelevant data returned without delay.

Conclusions: A Key Step for Digital Privacy

Judgment no. 9797 of 2025 by the Cassation Court is an essential reference for protecting privacy in the digital age, especially in criminal contexts. It reiterates that the right to confidentiality is not an obstacle to investigations, but a boundary to be respected. The defense of one's sensitive data requires conscious and well-argued action, supported by a solid legal strategy. Dealing with an evidentiary seizure of digital data is complex and requires a deep knowledge of the law. Relying on expert professionals is fundamental to asserting one's rights and ensuring that any confiscatory measure complies with legality and proportionality.