Tackling phone searches in Italy and in the US. Proposals for a technological re-thinking of procedural rights and freedoms

With the advent of digital technologies, most people are constantly carrying in their pockets or personal belongings an increasing amount of information stored on mobile electronic devices (like smartphones or smartwatches, just to mention a few). Most of these ‘multifunctional computers that just happen to have telephone capabilities’ can store tens of gigabytes of private information, a circumstance simply unthinkable only a few decades ago. The consequences of this situation heavily affect criminal investigations and appear especially evident in search incident to arrest. Indeed, while in a predigital era, searching a person meant searching of a physical body and potentially, of carried physical items, applying the same rules to smartphones or other equivalent devices changes rather drastically the impact of this investigative technique and confers to law enforcement and/or prosecutors access to an incredible amount of personal data. Search incident to arrest, however, represents only a tip of the iceberg of the revolution brought to criminal justice systems by digital technology, to which most legal frameworks remains utterly unprepared. Against this background, this article compares the state of play on procedural safeguards concerning search of digital devices like smartphones in the United States, after the notorious decision Riley v. California, with the Italian legal system. From this specific circumstance, general considerations will be drawn upon the need of rethinking the foundational basis of fundamental rights and freedoms established by the European Convention on Human Rights and by the Charter of the Fundamental Rights of the European Union in light of the advent of digital technology, trying to delineate some guidelines from which to extrapolate procedural rules able to guarantee an adequate level of safeguard in the digital era.