La violazione di sistemi informatici contenenti informazioni riservate come illecito internazionale: tra dimensione interstatuale e tutela dei diritti umani

The reconstruction of the violation of information system resources and data as an internationally wrongful act is contended by two poles of attraction: the horizontal dimension of inter-state responsibility and the vertical protection of human rights, particularly in its extraterritorial reach. The investigation of the constitutive elements of responsibility, namely imputability and wrongfulness, reveals some difficulties deriving not only from some definitory shortcomings but also from the awkward application of traditional categories to face some major challenges triggered by the contemporary trends of mass surveillance programs. As a consequence, these issues seem better addressed moving from a more comprehensive viewpoint, encompassing not only the necessary complementarity of the two mentioned dimensions, that deserve to be treated as non-mutually exclusive, but also new frontiers of protection, more oriented towards privacy enhancing technologies such as privacy by design or by default, encryption and anonymizing services.