The use of malware as a means of obtaining evidence in Portuguese criminal proceedings

BOOKS AND ACADEMIC ARTICLES 2014 in Digital Evidence and Electronic Signature Law Review, Vol. 11, 2014, pp. 55-75.

The use of malware as a means of obtaining evidence has increased in the course of the past years due to its effectiveness to counter the anti-forensic measures adopted by cyber criminals. In Portugal, it appears that this investigative tool was inserted in the Cybercrime Law as a technological device to be used in undercover operations. However, the terms in which this provision was foreseen lack clarity, precision and most of all respect for the defendant’s rights, thus raising doubts as to its constitutionality. This paper discusses the implications of this legislation. The topic is extensive, and certain important areas are not covered, such as: the issue of national reach beyond its borders, and the reliability of the evidence.