Online searches and online surveillance: the use of trojans and other types of malware as means of obtaining evidence in criminal proceedings

David Silva Ramalho é coautor do artigo intitulado “Online searches and online surveillance: the use of trojans and other types of malware as means of obtaining evidence in criminal proceedings”, publicado na obra Digital Evidence and Electronic Signature Law Review.

« The development of criminal procedure is determined by the options made by the legislator in the constant conflict between two of the State’s constitutional obligations: on the one hand, the obligation to promote internal security and increasethe effectiveness in the prosecution of crimes as a means of defending the State’s institutions; on the other hand, the obligation to safeguard the citizens’ fundamental rights against disproportionate restrictions as a means of protecting justice and freedom. The reconciliation of these conflicting interests is not a matter of seeking balance between them, as much as it is an option of policy to give priority to one over the other in certain circumstances and within specific constitutional limits. The factors that guide the policy include, but are not limited to, the seriousness of the crimes under investigation, the means used to perpetrate them, andthe difficulty in collecting evidence.In recent years, the rapid evolution and dissemination of technology and its misuse by organized crime in order to frustrate criminal investigations has led to a growing prevalence of the first of the abovementioned obligations over the latter, thus justifying the repeated emergence of new and more invasive tools for obtaining evidence. These tools usually emerge in one of three ways: (i) either they are used by law enforcement without a legal basis, (ii) or they are legally framed in provisions meant for different tools for obtaining evidence, (iii) or they are subject tospecific legislation.This has been the case for the use of malware by law enforcement. It has been established that this is a tool of unparalleled effectiveness in facing the –sometimes insurmountable –effects of anti-forensic measures apt to hide, alter, destroy or render impossible to obtain evidence of serious crimes. It has also been established that the use of this technology by law enforcement is spreading across different countries, including in Europe. The debate should now focus on the terms in which it may be constitutionally viable and, on the need, to correctly legislate on this matter, in order to prevent its illegal and disproportionate use».

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