Fighting Cybercrime in Europe: The Admissibility of Remote Searches in Spain

TLDR: In this paper, the authors consider the application of information technology in the proceedings of criminal investigation and some new instruments, known generically as "real-time electronic surveillance", with special attention to online searches of computer devices, and how States have undertaken to reform their internal regulations and adopted legislative measures to establish the powers and procedures for the purpose of the real-time collection of evidence in electronic form.

Abstract: Electronic evidence plays an essential role in computer-related crime prosecutions. The use of special investigation techniques (e.g., computer forensics and online surveillance) is a vital tool for the fight against cybercrime, and the collection of electronic evidence by law enforcement officers has become a real necessity. This paper considers the application of information technology in the proceedings of criminal investigation and some new instruments, known generically as ‘real-time electronic surveillance’, with special attention to ‘online searches’ of computer devices, how States have undertaken to reform their internal regulations and adopted legislative measures to establish the powers and procedures for the purpose of the real-time collection of evidence in electronic form, and how the Spanish legislator has not yet undertaken the necessary and urgent update of the Spanish Code of Criminal Procedure (LECrim) to suit the requirements of the digital age and to allow the use of the modern techniques of investigation that computer science provides. We discuss in detail about the accordance of the spanish regulation with the European Convention provisions and the ECHR case-law standards that govern electronic investigations. We recognize the effort of the spanish courts to overcome the lack of a solid legal basis to order surveillance of this kind, but we disapprove the way the spanish case-law has legitimized certain privacy-intrusive measures and police practices under the general coverage of their own assumed proportionality, in a way that does not fulfil the minimum requirements of legality, clarity and quality set down by the ECHR case-law. Finally, we conclude this paper condemning the permissible attitude of the Spanish Constitutional Court, unable to curb this tolerated legal limbo status, which increases the unpredictability of further case-law. It also perpetuates the inaction of the legislator, and does not afford sufficient protection against abuse and misuse of surveillance powers.