‘The three Ghosts of data retention’: passato, presente e futuro della disciplina italiana in materia di conservazione e acquisizione dei metadati per scopi investigativi. Commento a margine del d.l. 30 settembre 2021, n. 132 e relativa legge di conversione

The so-called data retention saga is still open at the European Union level, both before the Court of Justice of the EU and the EU Legislators – the proposal for a new e-Privacy Regulation, disciplining also the data retention regime, is now under discussion –. Together with these relevant and awaited evolutions, the principles and requirements already affirmed in the CJEU case-law have produced a serious debate also at the Member States level: national Legislators and Courts are asked to comply with the strict proportionality requirements indicated by the CJEU and to correctly balance the guarantee of fundamental rights on the one hand and national and public security needs on the other hand. In this complex and articulated context, the Italian Legislator has recently adopted a legislative reform, specifically modifying the access-to-metadata discipline. As Scrooge, in the famous novel A Christmas Carol, encounters the revelatory three Ghosts, this paper aims at providing an analysis of the past, present and future of data retention regime, discussing the necessary steps the Italian Legislator as well as national Courts are asked to take in order to promote a conscious and serious debate on the proportionality of such a delicate investigatory instrument.