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Freelance translator and/or interpreter, Verified member
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Surcharge(s): Rush jobs +30% to +50% Jobs of high complexity +20% to +30% Complex formatting +10% to +20% Discount(s): High volume -10% to -20% Minimum charge(s): Minimum charge for translation in EUR: 25.00
Italian to English: Legal opinion on law enforcement access to servers - Dawn raids General field: Law/Patents Detailed field: Law (general)
Source text - Italian 1.1 Can the national regulatory authorities in your jurisdiction rightly claim to have the power to request and access during a dawn raid, electronic documents belonging to the national XXX subsidiary, XXX Inc and other XXX Group companies, that are stored on XXX data servers outside of the jurisdiction?
Sia l’Italia che gli Stati Uniti hanno firmato e ratificato la Convenzione sul Cybercrime (sottoscritta a Budapest il 23.11.2001) (http://conventions.coe.int/Treaty/en/Treaties/html/185.htm), con cui si è inteso promuovere una politica comune volta a tutelare la società dai crimini informatici, adottando una legislazione appropriata e realizzando una fruttuosa cooperazione a livello internazionale. Sempre più spesso accade infatti che la Polizia Giudiziaria non conosca il luogo in cui è collocato il server che contiene i dati incriminati, in quanto l’indagato ha utilizzato risorse hardware o software distribuite in remoto per memorizzare ed elaborare i dati digitali. Gli Stati firmatari della Convenzione sul Cybercrime hanno quindi dettato numerose disposizioni per contrastare tale fenomeno, tra cui vanno ricordati gli articoli 18 (Production order), 19 (Search and seizure of stored computer data) e 20 (Real-time collection of traffic data).
In particolare, da quanto specificato al comma 2 dell’art. 19 della Convenzione sul Cybercrime, si deve ritenere che nel caso di dati o documenti elettronici materialmente contenuti su server di XXX situati negli Stati Uniti, l’Autorità Giudiziaria italiana non è legittimata ad accedere agli stessi anche qualora fossero comunque accessibili da un sistema informatico situato in Italia1 .
2. Each Party shall adopt such legislative and other measures as may be necessary to ensure that where its authorities search or similarly access a specific computer system or part of it, pursuant to paragraph 1.a, and have grounds to believe that the data sought is stored in another computer system or part of it in its territory, and such data is lawfully accessible from or available to the initial system, the authorities shall be able to expeditiously extend the search or similar accessing to the other system.
Tuttavia, sebbene la Convenzione sul Cybercrime sia stata interamente ratificata in Italia con Legge 18 Marzo 2008, n. 48, le norme procedurali penali italiane non hanno espressamente recepito le limitazioni di cui all’art. 19 della Convenzione. Nel caso di dati contenuti in server esteri, ma accessibili da una postazione informatica situata in Italia, non può quindi escludersi che la prassi investigativa dell’Autorità Giudiziaria italiana porti a richiedere l’accesso a tali dati anche se coperti da password, come del resto è avvenuto nell’ambito del procedimento XXX / Vividown. La password verrebbe richiesta ai dipendenti della società i quali non potrebbero rifiutarsi di consegnarla, considerato che le garanzie previste dal codice di procedura penale italiano, simili a quelle previste dal quinto emendamento della Costituzione Americana, riguardano esclusivamente l’indagato e non soggetti che non sono indagati nel procedimento (come ad esempio i dipendenti della società). La possibilità di contestare la legittimità delle attività d’indagine dell’Autorità Giudiziaria è comunque assicurata in una fase successiva all’attività stessa, durante il possibile e successivo giudizio.
1 Sul tema si veda l’art. 193 dell’Explanatory Report della Convenzione sul Cybercrime: “Paragraph 2 allows the investigating authorities to extend their search or similar access to another computer system or part of it if they have grounds to believe that the data required is stored in that other computer system. The other computer system or part of it must, however, also be ‘in its territory’”.
Translation - English 1.1 Can the national regulatory authorities in your jurisdiction rightly claim to have the power to request and access during a dawn raid, electronic documents belonging to the national XXX subsidiary, XXX Inc. and other XXX Group companies, which are stored on XXX data servers outside of the jurisdiction?
Both Italy and the United States have signed and ratified the Convention on Cybercrime (signed in Budapest on 23.11.2001) (http://conventions.coe.int/Treaty/en/Treaties/html/185.htm), which had the aim of promoting a common policy directed towards protecting society from computer crimes, by adopting suitable legislation and by creating gainful co-operation internationally. In fact, increasingly Law Enforcement does not know the location of the server on which indictable data are stored, in that the person under investigation has used remotely-distributed hardware or software for storing and processing digital data. The signatory States to the Convention on Cybercrime have, thus, laid down numerous provisions for countering this phenomenon, amongst which we would highlight: articles 18 (Production order), 19 (Search and seizure of stored computer data) and 20 (Real-time collection of traffic data).
Specifically, with regard to the provision of article 19(2) of the Convention on Cybercrime, we are of the opinion that, in the case of data or electronic documents materially stored on XXX servers located in the United States, the Italian Judicial Authorities cannot lawfully access them, even if they were to be accessible, in any case, from a computer system located in Italy2 .
2. Each Party shall adopt such legislative and other measures as may be necessary to ensure that where its authorities search or similarly access a specific computer system or part of it, pursuant to paragraph 1.a, and have grounds to believe that the data sought is stored in another computer system or part of it in its territory, and such data is lawfully accessible from or available to the initial system, the authorities shall be able to expeditiously extend the search or similar accessing to the other system.
However, while the Convention on Cybercrime was fully ratified in Italy with Law no. 48 of 18 March 2008, the Italian criminal procedural rules have not explicitly transposed the restrictions provided under article 19 of the Convention. In the event of data stored on servers abroad, but accessible from a computer station located in Italy, one cannot exclude that the investigative practice of the Italian Judicial Authority may lead to a request for accessing such data even if they are protected by password, as was indeed the case in the XXX/Vividown proceedings. The password would be requested from employees of the company, who would not be able to refuse to provide it, considering that, the guarantees provided by the Italian code of criminal procedure - similar to those under the fifth amendment of the American Constitution - only regard the person under investigation and not persons who are not under investigation in the proceedings (as, for example, employees of the company). The possibility of challenging the legality of the investigative activities of the Judicial Authority is, in any case, assured in the next stage of the activity during any subsequent trial.
2 On this question, see article 193 of the Explanatory Report of the Convention on Cybercrime: “Paragraph 2 allows the investigating authorities to extend their search or similar access to another computer system or part of it if they have grounds to believe that the data required is stored in that other computer system. The other computer system or part of it must, however, also be ‘in its territory’”.
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Translation education
Bachelor's degree - Manchester University UK
Experience
Years of experience: 26. Registered at ProZ.com: Jul 2008. Became a member: Jul 2008.
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Bio
Freelance legal and financial specialist translator, including MTPE
I have been translating for over 20 years and now specialise in financial and legal subject matter, including contracts, incorporation papers and bylaws, shareholders' meeting and BoD minutes, resolutions, corporate legal texts, code of ethics and more complex agreements, as well as due diligence reports. I also translate complex litigation briefs for major international law firms for service abroad. I specialise in all employment-related and privacy legal documents. I worked for three years at an international law firm in Milan and my lawyers described me as having a "rare talent and absolutely unbeatable fast turn-around". I furthermore translate financial statements (GAAP, IFRS, NO-PROFIT) and other corporate financials. I have an excellent knowledge of the derivatives market and relevant terminology.
Here is a sample of the projects I have handled:
- Litigation briefs concerning interest rate swaps with city and regional authorities as litigants against a major international investment bank.
- International litigation and joinder action concerning a case of "dividend washing" and speculative use of derivatives for tax avoidance.
- Contracts: sales, distribution, lease, services, mega-yacht construction, insurance brokerage, senior finance agreements, letters of intent for IP and know-how exchange, M&A, etc.
- Numerous translations of court petitions for civil claims and relative counter claims.
- Criminal cases involving white collar crimes.
- Italian Antitrust case decisions.
- Data Protection Garante case decisions.
- Language assistance in matter (Spanish Client) vs (Italian Company) (in bankruptcy) during court-ordered expertise and during court hearings at Court of Milan.
- Legal assistance for employment matter (XXX vs IT Co spa and XXX UK Ltd) initiated in UK but case docketed in Italy under more favourable Italian jurisdiction (the case was settled out of court in favour of claimant with costs). Legal assistance included analysing pay slips and welfare contributions and asking competent UK agencies to run checks and inspections on UK employer.
- Employment law cases in matters concerning unfair dismissal of employees by major Italian Fashion Designers.
- Revision of presentations and work of trainee lawyers concerning former legislation 626/1994 on safety at the workplace and 231/2007 (criminal liability of companies).
- Financial statements (IFRS for listed Energy and environmental services distributor and retailer).
- Tax demands and fines service papers imposed by Italian Revenue Agency.
- Insurance procedures and claims.
- ISVAP - breaches of insurance code and fines.
- Full Company Quality Assurance procedures (50,000 words).
- Bidding documents and agreements for corsortia and temporary groupings of undertakings, including relevant surety documents and performance bonds.
My projects are mainly Europe-based and I regularly work for agencies and clients in The Netherlands, Belgium, UK, Spain, Germany, Ireland, Poland and have I have even worked for clients in India, Japan and New Zealand. 95% of my work is outside of Italy where I live.
I worked in advertising for 17 years in client service for SSC&B:Lintas, Alberto Cremona Advertising (client service and TV producer) and Leo Burnett, where I was Account Director on major international accounts. I can also handle marketing-related content, market research, websites and all things advertising.
Member since Jul '08
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