Limits on the Use of Trojan Software for Common Crimes: The Home as a Boundary

1. The facts

   According to specialized press reports, the case stems from an appeal to the Court of Cassation against a ruling by the Rome Review Court that upheld a precautionary measure for corruption crimes. At the heart of the dispute are environmental interceptions conducted via Trojan software installed on the suspects' portable devices. The prosecution alleges episodes of corruption in the exercise of functions and in judicial acts, based on conversations recorded by the Trojan within private offices and homes. The legal crux lies in the warrant issued by the Preliminary Investigations Judge, which, despite authorizing domestic interception, allegedly failed to specify the reasons for necessity or the precise times and locations of activation. The defense therefore challenged the admissibility of such evidence, arguing that for common crimes, roving surveillance without defined spatial and temporal constraints is not permitted, unlike the provisions for organized crime.

2. 

   The legal framework

   The legal framework revolves around the so-called Bonafede Reform:

   1. Article 266, paragraph 2-bis, c.p.p. allows the use of Trojan software for crimes against the public administration committed by public officials with statutory maximum penalties of not less than five years.
   2. Article 267, paragraph 2-bis, c.p.p. mandates that, for common crimes, the authorization warrant must contain specific reasoning regarding the necessity of domestic interception and must specify the locations and times of activation.
   3. Article 191 c.p.p. establishes the inadmissibility of evidence acquired in violation of legal prohibitions.
   4. Article 14 of the Constitution guarantees the inviolability of the home, which may only be restricted in the cases and manners established by law.

3. What the jurisprudence says

   The Court of Cassation has clarified that Trojan software cannot be considered an unlimited, all-encompassing investigative tool. While broad interception is permitted for mafia and terrorism offenses due to heightened social danger, for common crimes the jurisprudence demands strict adherence to the principle of proportionality. Established case law emphasizes that using surveillance software in private homes must not degenerate into a so-called fishing expedition. The Court has reiterated that the judge's warrant must limit microphone activation to specific times and locations, avoiding any delegation to the judicial police to arbitrarily decide when to record a citizen's private life. In the absence of these requirements, the results of interceptions conducted in private dwellings are strictly inadmissible.

5. Analysis drafted and verified with edit.legal

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8. What it teaches professionals

   1. Always verify the specificity of the authorizing warrant regarding the spatial and temporal coordinates of domestic interception.
   2. Carefully distinguish the applicable evidentiary regime depending on whether the proceedings involve organized crime or offenses against the public administration.
   3. Thoroughly examine Trojan activation logs provided by technical experts to cross-reference recording timestamps with device GPS data.
   4. Promptly raise objections of inadmissibility during precautionary review proceedings to weaken the prosecution's evidentiary foundation.

References: Art. 266 comma 2-bis c.p.p.Art. 267 comma 2-bis c.p.p.Art. 191 c.p.p.Art. 14 Costituzione

Editorial oversight: Avv. Federico Papa·ICAMUpdated 19 September 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction