Italy’s Supreme Court has ruled that encrypted messages obtained by an international police operation to hack into a secure phone network used by organized crime groups cannot be used in a preliminary hearing unless prosecutors explain how the evidence has been obtained.
Italy’s Corte di Cassazione concluded that a defendant should not only have the opportunity to ask questions about the content of the messages that the police obtained from the Sky ECC encrypted telephone networkbut also to question the course of the investigation process.
The decisionwhich follows the refusal of prosecutors in Italy and other countries to release details of the hacking operation, could compel prosecutors to reveal information about how police obtained messages from the supposedly secure phone network.
Dutch defense lawyer Justus Resigner said he now plans to raise the matter with the Dutch Supreme Court, where prosecutors have also refused to release information about how Dutch police obtained decrypted messages from the Sky ECC telephone network.
Hundreds of millions of decrypted messages
Belgian, French and Dutch police collaborated in an undercover operation of the Sky ECC secure phone network and managed to decrypt hundreds of millions of messages from phones used by organized criminals.
Police investigations, which began in Belgium, have identified 170,000 people around the world using Sky ECC phones, supplied by technology company Sky Global, using computer servers based in a French data centre. Hundreds of arrests of members of drug-related criminal groups followed in 2021.
According to the verdict of the Italian Supreme Court, first reported by crimesite in the Netherlands, Italian prosecutors refused to release information from Europol to Italy regarding the police interception and decryption operation against Sky ECC.
The ruling was dated July 15, 2022 but was only recently released.
Prosecutors argued that the details could not be released because it was “exchanges of information between police forces in different countries that could not be used in court”.
A lower Italian court had agreed with prosecutors that since the decrypted messages were transmitted to Italy by foreign judicial authorities, the material could be used without further examination as there was a presumption that the interception had been lawfully carried out.
The case concerned the pre-trial detention of a 31-year-old man born in Rome who was suspected of having a ‘criminal association’ with drug trafficking and had asked to be placed under house arrest in another part of Italy where he resided. with her family.
European Investigation Order
Italian police used a European Investigation Order to obtain encrypted messages from Europol’s Sky ECC telephone network, which coordinated investigations by French, Belgian and Dutch police.
The defendant asked the Italian prosecutor to provide messages allegedly sent by the defendant, including files given to Europol in March 2021, after the police gained access to Sky ECC servers, to show how Europol had acquired infiltrated server data.
The Supreme Court concluded that without access to the documents, it was not possible for the defendant to understand the content of information exchanged by police forces in different countries or to understand how investigations were conducted.
Reliability of evidence
The court ruled that the manner in which the evidence was acquired, including the “capture and decryption of telematics feeds” from Sky ECC, was important information to disclose to defense attorneys.
“All this inevitably implies the possibility of knowing the way in which the investigative activity took place and the procedure for acquiring such messaging”, to allow the defense as of right and to assess the relevance, the reliability and value of the evidence, the court found.
The Supreme Court sent the case back to prosecutors at the Rome court for a new judgment.
Justus Resigner, a Dutch lawyer who studied the judgment, said the case could influence prosecutions in other European countries.
“The Italian Supreme Court really cares about the rights of the defence. A suspect must be able to test the legality and reliability of evidence. This applies even when there is a principle of trust between EU member states and even when someone is in pre-trial detention,” he said.
British police forces have made thousands of criminal gang arrests based on intercepted or hacked messages from another hacked phone network, EncroChatused by criminals.
French investigators have refused to disclose how they downloaded millions of messages from the supposedly secure cryptophone network, citing “military secrecy”.
Computer forensics and legal experts have questioned the “black hole” of evidence on how the EncroChat hacking operation was carried out.
It is unclear whether UK police had access to the Sky ECC messages.