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13 Digital Evidence & Elec. Signature L. Rev. 88 (2016)
Online Searches and Online Surveillance: The Use of Trojans and Other Types of Malware as Means of Obtaining Evidence in Criminal Proceedings

handle is hein.journals/digiteeslr13 and id is 88 raw text is: Introduction 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 increase the 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, and the 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 to specific 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. Malware Malware is short for malicious software and it may be briefly described as a 'a simple or self-replicating program, which discreetly installs itself in a data processing system, without the users' knowledge or consent, with a view to either endangering data confidentiality, data integrity and system availability or making sure that the users are framed for a computer crime'.' In broad terms, it includes all kinds of software installed surreptitiously by third parties on a computer system, which can be used to somehow compromise its functions, circumvent its access controls, be detrimental to its user or to the infected computer system, monitor the user's activity or appropriate, corrupt, delete and change computer data. When referring to the use of such software in criminal investigations, the doctrine usually refers only to Trojan horses or simply trojans. However, trojans represent just one of many types of malware which may be used in criminal investigations in the digital environment, alongside, among others, logic bombs, spyware, rootkits, viruses, worms or even the increasingly common blended threats, which include more than one type of malware. Starting with the most used concept, Trojan horses, we can seek to define them as a type of malware that appears to be harmless and deceives the user in order to stimulate an active conduct that will result in its installation on the target computer system.2 This 1 Eric Filiol, Computer Viruses: from theory to application (Springer, 2005), p. 86. 2 This is often provoked by different ways of social engineering, designed to exploit 'vulnerabilities in human beings, which are also a This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Unported License I 88 This work is licensed under a Creative Commons Attribution -Noncom mencial- NoDerivs 3.0 Unported License I188

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