The case, explained
Cybersecurity and Trojans: New Limits on the Use of Remote Surveillance Tools
6 min read · Updated July 2026 · Editorial oversight: Avv. Federico Papa
Technological advancements in investigative tools have placed so-called Trojan horses at the center of legal debate, raising crucial questions about the inviolability of the home. According to press reports over recent months, case law has recently drawn a clear line between the legitimate use of these tools and indiscriminate surveillance, especially when investigative activities impact the private sphere in the absence of organized crime. In this article, we will explore how the Supreme Court has redefined the powers of the GIP (Judge for Preliminary Investigations) during the authorization phase, ensuring greater constitutional protection for suspects. By reconstructing the facts reported by national news outlets and analyzing the rules of the Code of Criminal Procedure, we will see the necessary conditions to prevent environmental recordings from being declared inadmissible. We will conclude the analysis with a twin case, a didactic simulation useful for understanding the practical application of legal principles and the defense strategies available in situations of potential abuse of IT tools.
In brief
The use of remote surveillance tools, known as Trojans, represents one of the most sensitive frontiers of criminal procedural law. This article examines recent Supreme Court rulings that set strict limits on activating microphones in private residences for common crimes. By analyzing the rules and a reconstructed case study, we outline the necessary guarantees for the legitimacy of evidence and the protections for suspects against the technological pervasiveness of modern investigations.
The fact
The case stems from an investigation into alleged corruption and crimes against the Public Administration, extensively documented by outlets such as AGI, Il Dubbio, and Diritto e Giustizia.
According to reports, investigators had installed a Trojan horse on a public official's smartphone for environmental monitoring. The GIP had issued an authorization decree that, however, did not specify the exact locations or times for activating the microphone within private residences.
The defense appealed the Review Court's order, arguing that this lack of specificity made the home interceptions illegal due to a violation of Art. 14 of the Constitution. The case reached the Supreme Court, which annulled the challenged order and referred it back, ruling that recordings made in the home are subject to inadmissibility if the authorization decree lacks specific justifications.
The rules in play
The legal framework centers on the Code of Criminal Procedure. Art. 266, paragraph 2-bis, governs the use of remote surveillance tools for interceptions between present parties, distinguishing between organized crime and common crimes.
Art. 267 requires that for common crimes, the judge's decree must explicitly state the reasons making home capture necessary, unless it is believed that the criminal activity is currently taking place there. Finally, Art. 271 establishes the penalty of inadmissibility: results of interceptions carried out without respecting these forms cannot be used as evidence at trial.
What case law says
The jurisprudence of the Supreme Court has clarified over time that a Trojan cannot be considered an omnivorous or trawling tool. While a derogation exists for mafia and terrorism crimes allowing constant home capture, for all other crimes, the protection of the home must prevail.
The judges established that the GIP's decree cannot be generic; it must contain autonomous reasoning and specific limitations on the tool's use. Without this spatial and temporal delimitation, the interception turns into total surveillance, which is incompatible with the principles of the rule of law.
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Lessons for professionals
1. Meticulous check of the decree: It is essential to verify if the GIP specifically justified the Trojan's activation in the home for non-mafia crimes.
2. Log file analysis: Lawyers must request access to system logs to verify the exact time and place of microphone activation.
3. Timely objection: Inadmissibility of evidence must be raised at the earliest opportunity to avoid procedural bars.
4. Protection of third parties: Always evaluate whether the tool captured conversations protected by professional privilege, raising the relevant violations.
References: Art. 14 Costituzione ItalianaArt. 266 comma 2-bis c.p.p.Art. 267 c.p.p.Art. 271 c.p.p.D.Lgs. 216/2017L. 7/2020
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Frequently asked questions
What are the penalties for those targeted by Trojan interceptions?
A Trojan is an evidentiary tool, not a crime itself. Penalties depend on the crime under investigation (e.g., corruption, fraud). If the interception is unlawful, it cannot be used to establish guilt.
Is there a statute of limitations for the use of data collected by a Trojan?
Data follows the statute of limitations of the main crime. However, if data is declared inadmissible, its destruction must be ordered according to procedural rules, making it permanently unavailable.
What should one do if they suspect a Trojan is on their phone?
It is advisable to consult a lawyer and, if necessary, a cybersecurity expert for a technical assessment. You should not attempt to remove it yourself to preserve the integrity of evidence for trial defense.
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