More than four months from the launch of the decree with which the Government disciplined the interceptions of communications between the present by inserting an electronic sensor on a portable electronic device, the failure to issue a timely enacting technical regulation, entrusted to - ex art. 7 of the aforementioned decree - the Ministry of Justice, has left unresolved the various problematic profiles of the regulation (for more details, see article published on last 16.02.).

The real Gordian knot of Legislative Decree 216/2107 is represented by the modification made to article 267 paragraph I, last period, of Criminal Procedure Code (c.p.p.), which, in the current drafting, states: ''The decree authorizing the interception between the present through the insertion of an electronic sensor on a portable electronic device indicates the reasons that make this kind of methods necessary for the investigations; as well as, when proceeding for offences other than those referred to in article 51, paragraphs 3-bis and 3-quater, the time and place, even indirectly determined, in relation to which the activation of the microphone is allowed".

The letter of the law shows clearly that, when proceeding for the offences of greater social alarm - such as those of terrorism or criminal and mafia-related activities, the computer intrusion is always allowed, regardless of the indication in the authorization decree of time and place in relation to which the microphone is activated; conversely, in relation to the ''common offences'' - all those indicated in article 266, paragraph I, c.p.p. not included among those indicated in articles 51, paragraphs III-bis and III-quater, c.p.p. – the electronic sensors cannot be kept active without the time and place limits, having to be activated remotely as required by the public prosecutor in their investigation program.

The aforementioned time and space delimitation, although favorably welcomed as a form of guarantee of the individual's rights and freedoms, has placed, to a more careful examination, serious doubts regarding the usability of the outcomes of the investigations in trials, given that it would be very complicated to accurately indicate the places affected by the activity carried out through a "mobile" electronic device (Supreme Court judgement no. 27100/2015 established that the authorization decree must identify, precisely, the places in which the interception will have to be carried out, since an indeterminate indication or even the absence of any indication in this regard is not admissible).

The uselessness, which can be deduced from the link between art. 267 and the art. 271, paragraph I, c.p.p., is also reinforced by the provision according to which "data acquired during the operations prior to the insertion of the electronic sensor on the portable electronic device and the data acquired outside the time-place limits indicated in the authorization decree cannot be used in any case" (Article 271, paragraph I-bis, c.p.p.), so as to allow its destruction ''unless it constitutes a body of crime'' (Article 271, paragraph III, c.p.p.).

Considering that time and place are concepts that are difficult to mix with the communication systems that travel in the network, the aforementioned time-space limits must be managed with extreme care in order to effectively use the computer virus.

Also in order to overcome the practical and operational difficulties, the art. 7 of Legislative Decree 216/2017 - entitled ''Implementing provisions'' - has provided that, the Ministry of Justice, within thirty days from the date of entry into force of the legislative decree - deadline not respected to date -, issue a technical regulation designed to regulate, among other things, the essential monitoring activity of the stations that remotely control the trojan and to ensure that the use of computer programs is limited to the execution of only authorized operations.

The importance of this regulation, which is hoped for the speedy implementation, is therefore fundamental in order to achieve the right balance between the protection of constitutionally granted defensive rights and the investigative needs for truth and justice.