The reform of data retention for the purpose of combating crime

Between technological evolution and the protection of rights

Abstract

With Decree-Law No. 132 of 30 September 2021, converted with amendments by Law No. 178 of 23 November 2021, the Italian legislator profoundly amended Article 132 of Legislative Decree No. 196 of 30 June 2003, the provision concerning the retention and acquisition of telephone and telematic traffic data for the purposes of preventing and combating crime (so-called data retention). As is clear from the text of the decree itself, the reform was prompted by the ruling of the Grand Chamber of the Court of Justice of the European Union on 2 March 2021 (Case C-746/18, H.K. v. Prokuratuur). This paper, after outlining the main features of the institution in question and retracing the key rulings of the Court of Justice on data retention, aims to highlight how the legislative changes not only align with the evolution of technologies used for digital surveillance purposes, but also represent a significant step forward in the protection of fundamental rights. Finally, the article addresses certain critical issues in the current legislation that remain unresolved by the reform under discussion.