Cybercrime and abuse in criminal investigation

To the much-used argument –markly radical and erroneously utilitarian– that without the use of certain “marginal” means of police investigation, currently magnified to unstoppable levels by technological development, judges would lack the necessary and sufficient evidence means to impart “true justice”, we would immediately have to oppose , that in a Rule of Law, necessarily and without any exception or valid excuse, one must act within the framework that the Law and the Constitution offer, and that all activities that go beyond them ignore, bankrupt , distorts or even abuses, would have to be illegal and consequently null and ineffective for the purpose of serving as procedural evidence of charge, without prejudice, of course is, to prosecute the authors and those responsible for such an abuse of power…

It is known that both our Supreme and Constitutional Courts and the ECtHR have solidly established the doctrine of prohibiting, under penalty of radical nullity, the so-called “prospective investigations”, known in the Anglo-Saxon doctrine as “fishing expeditions, as well as the so-called “general causes”, directed to the search, with the persecutory, non natas and, by itself, unknown although suspected criminal offenses by certain individuals, natural or legal, who are forcibly tried to prosecute for unspeakable reasons… generally political or economic…

A recent resolution (“Auto”) of the TS Criminal Chamber that, among others, for its clarity and dogmatic specificity is worth remembering, is that of July 1, 2014, appeal 20225/14, presentation by Judge D. Francisco Monderde Ferrer, also made up of the Chamber by Judges D. Juan Saavedra Ruiz; D. José Manuel Maza Martín and D. Miguel Colmenero Méndez de Luarca, in the case known as “of the chalet in Estepona of the President of the Community of Madrid”. It rejects the prosecution claim and specifies the reiterated jurisprudence of said Chamber (AATS 01.14.2015; 10.11 2013; 06.18.2012 and 05.31, by all) regarding that:

“the mere publication of information in the media cannot simply justify the opening of criminal proceedings for the investigation of facts if, additionally, it is not offered or provides some indication of its commission that can be qualified as accessible and rational.”

And the aforementioned resolution further clarifies:

“It should be reiterated that this Tribunal CANNOT request the initiation of a merely PROSPECTIVE investigation to try to find out if a person has committed, at some point, a crime in relation to the multitude of facts and events that are imputed to him; and this in the absence of any data or objective element that supports this possibility…”

It is true that we have entered fully and without return into the era of Cybercrime, and that the Internet and its affinities They have become a channel and cornerstone of countless frauds, scams, child pornography, prostitution, white slavery, illegal sale of weapons, drugs, etc. etc., using as instruments of criminal commission computers, tablets, mobile phones and other mass communication products, of unlimited and even unimaginable projection, reaching today those aerial surveillance gadgets called “drones”…

The central question is: How does the growing Cybercrime and its combat through modern police investigation technology fit in with the age-old constitutional doctrine of respect for the privacy of the person, their dignity, the secrecy of communications…guaranteed by article 18 of our Constitution and concordant provisions. Is personal privacy going to disappear for the sake of general security? Are there legal limits that are precisely delimited and effectively respected?

The subject does not logically have an easy answer and, in fact, there are many different ways to try to reconcile them; but there is also enormous uncertainty regarding the possible conflict between what, according to police and judicial criteria, is legal and admissible at a given moment and what which constitutes, at that very moment, the so-called social and public interest… Already, in fact, in the USA a new category of investigated has been created, who are neither suspected nor denounced, much less accused or accused…it is simply the so-called “person of interest”…someone about whom, in principle, it is “interesting” to know more…; but without specifying, neither much nor little, neither the why… nor the how much more… Of their own and following the path of existing advanced technology, almost all of them, in congruence with the recent revelations made by wikileaks, we are progressively and unstoppably becoming “person of interest”…unless we are so bland, anonymous and uninteresting that not even dogs bark at us when we walk by… since we don’t ride…

We note that, at least dialectically, there is a struggle, an open combat between the forces of “discovery” and the opposing forces of “confidentiality”. Recall the recent and highly publicized confrontation between the FBI and the Apple company in the case of the San Bernardino, California, massacre because the company refused to provide the secret codes or “passwords” of the iphones that the police force was not capable of decoding and required to know them peremptorily. There are also numerous applications for encrypting content that the forces of “discovery” are dedicated to unraveling. The only currently existing legal possibility is, ultimately, to resort to the decision-making protection of the judicial authority and argue that there is or is not “probable cause” or “indication of criminality” and request or oppose the claims for intervention of communications (in English: “warrant”). But, for their part and without prejudice to this, given the slowness and uncertainty of the judicial authorities, the police forces, much more expeditious and less legalistic, are already developing some so-called “robotic dogs” capable of entering confidential and encrypted information and discovering it, almost without insurmountable limits, and without having to wait for those cumbersome judicial authorizations, which also, as we know, require tedious temporary renewals…