The investigation should concern one of the following criminal offences (Art. 588 ter a in relationship with art.579.1 Criminal Procedural Code): a) Intentional crimes punished with a maximum of, at least, three years’ imprisonment sentence. b) Offences committed within a criminal group or organisation. c) Terrorist offences
General requirements:
1. principles of speciality (a measure is related to the investigation of a specific crime),
2. adequacy (the objective and subjective scope and the duration of the measure depending on its usefulness),
3. exceptional nature and necessity (where the investigation, given its nature, does not have other measures available which are less onerous to the fundamental rights of the accused, and when discovering of the facts is seriously hampered without recourse to this measure)
4. proportionality of the measure (when the detriment of the rights and interests at stake is not greater than the benefit that their adoption provides for public interest and third parties).
5. judicial authorization, specifying the technical means to be used.
6. Obligation of providers, agents and persons to provide the assistance and cooperation needed to the judge, the Public Prosecution Service, or members of the Judiciary Police appointed.
Section 2. Inclusion of electronic traffic data or similar into the
proceedings
Article 588 b. x. Data held in service providers’ computerised files.
1. Electronic data held by service providers or persons facilitating communication in
compliance with the legislation on retention of data relating to electronic
communications, or on their own initiative for commercial reasons, or other type, and
which are linked to communications processes, may only be assigned for incorporation
into the proceedings with judicial authority.
2. Where knowledge of these data is essential to the investigation, the competent
judge will be requested for authorisation to gather the information appearing on the
computerised files of the service provider, including intelligent data searching or crosssearching,
as long as the nature of the data to be discovered and the reasons justifying
the assignment are specified.
Section 3. Access to data needed to identify users, terminals and
connectivity devices
Article 588 b. xi. Identification by IP address.
Where, in their work on prevention and discovery of crimes committed on the internet,
members of the Judiciary Police have access to an IP address which is being used to
commit a crime and do not have the identification and location of the associated
equipment or connectivity device, or personal identification data for the user, they will
request the examining magistrate to order the agents subject to the duty to cooperate,
according to article 588 b. v., to assign the data permitting identification and location
of the terminal or connectivity device and identification of the suspect.
Article 588 b. xii. Identification of terminals by capturing identification codes for the
device or its components.
1. If, within the framework of an investigation, it is not possible to obtain a specific
subscriber number and this is essential for the purposes of the investigation, members
of the Judiciary Police may use technical devices which allow them to find out the
identification codes, or technical labels, of the telecommunications device, or any of its
components, such as IMSI or IMEI numbers and, in general, any other technical means
that, in accordance with the latest technology, is suitable to identify the communications
equipment used or the card used to access the telecommunications network.
2. Once the codes allowing identification of the device, or any of its components, have
been obtained, members of the Judiciary Police may apply to the competent judge to
intercept communications under the terms provided for in article 588 b. iv. The
application must make the user of the devices referred to in the previous paragraph
known to the court.
The court will issue a reasoned decision granting or refusing the application for
intervention within the time limit provided for in article 588 a. iii.
Article 588 b. xiii. Identification of owners or terminals or connectivity devices.
Where, when carrying out their duties, the Public Prosecution Service, or the Judiciary
Police, need to know the owner of a telephone number or any other means of
communication, or, conversely, need the telephone number or identity details of any
means of communication, they may go directly to the service providers for
telecommunications, access to a telecommunications network or information society
services, who will be under the obligation to comply with the request, with a warning
about committing the offence of disobedience.