Wiretaps and Computer Bugs in Private Places: The Court of Cassation Clarifies with Ruling No. 29613/2025

In criminal law, wiretaps using a "computer bug" are invasive tools that affect private life. The Court of Cassation, with Ruling No. 29613 of July 23, 2025, has outlined the conditions for using computer bugs in private residences, particularly for organized crime offenses. This decision is crucial for balancing the repression of serious crimes and the right to privacy (Art. 614 of the Italian Criminal Code, Art. 14 of the Italian Constitution).

The Computer Bug and the Ruling of the Court of Cassation

The computer bug, a "trojan" for electronic devices, is a powerful investigative tool, intercepting communications and recording ambient conversations. Its invasiveness is at its maximum in private residences, which are inviolable places. The Supreme Court, with Ruling No. 29613/2025 (filed August 20, 2025), presided over by Dr. L. P. and with Dr. F. C. as rapporteur, addressed this issue. Rejecting the appeal of M. F. against an order from the Palermo Tribunal for Liberty, the Court established a key principle, summarized in the following maxim:

In the matter of wiretaps, for proceedings concerning organized crime offenses registered up to August 31, 2020, to which the provisions of Article 13 of Legislative Decree of May 13, 1991, No. 151, converted, with amendments, by Law of July 12, 1991, No. 203, apply, and for proceedings concerning offenses referred to in Article 51, paragraphs 3-bis and 3-quater, of the Code of Criminal Procedure, registered after August 31, 2020, to which Article 266, paragraph 2-bis, of the Code of Criminal Procedure applies, the interception of communications between present persons is permitted through the insertion of a computer bug on a portable electronic device, even in private residences, without the need for prior identification and indication of such places, or for proof that they are sites of ongoing criminal activity, or for an indication of the reasons justifying its use. This latter motivational burden is required by Article 266, paragraph 2-bis, second part, of the Code of Criminal Procedure, only for offenses committed by public officials or persons in charge of public service against public administration for which the penalty of imprisonment not less than five years in maximum is provided, determined according to the criteria of Article 4 of the Code of Criminal Procedure.

In summary, for organized crime offenses, the Court of Cassation permits the use of computer bugs in private residences without prior indication of the location, proof of ongoing criminal activity, or specific justification. This exception is justified by the seriousness and elusive nature of such offenses, prioritizing investigative effectiveness.

Regulatory Regimes and Motivational Burdens

The ruling distinguishes two regimes for application: Article 13 of Legislative Decree 151/1991 (until August 31, 2020) and Article 266, paragraph 2-bis, of the Code of Criminal Procedure (subsequent). For organized crime offenses, a stringent motivational burden is not required. Article 266, paragraph 2-bis, second part, of the Code of Criminal Procedure imposes it for offenses against public administration (public officials, penalty not less than five years). This distinction highlights a different balance between investigative effectiveness and individual guarantees.

Conclusions: Balancing Investigation and Rights

Ruling No. 29613/2025 balances collective security and individual freedoms. For organized crime offenses, it confirms the need for incisive tools such as computer bugs in private places, even with reduced motivational burdens. This exception is strictly circumscribed, demonstrating a constant effort to balance the efficiency of justice and respect for fundamental rights. Understanding these mechanisms is crucial for the protection of one's rights and the importance of qualified legal defense.