The use of malware in criminal proceedings has increased over the past years due to its effectiveness in fighting crime. In this respect, the aim of this article is to analyze the complex legal issues related to the use of computer viruses, with specific reference to the balance between the need to prevent and counter crimes and the safeguard of individual rights (i.e. the right of defense and the protection of privacy). This article is divided into three main parts. First, it points out that the use of trojans is hardly regulated both by States and by judicial cooperation mechanisms. Second, the focus shifts to the jurisprudence of the ECtHR and the EUCJ as regards mainly the secret surveillance and mass surveillance programmes. Finally, the article examines the Italian legal system, where the recent intervention of the Legislator seems to be open to criticism as it is largely inconsistent with European standards on individual rights and the protection of privacy.
La ricerca della prova digitale mediante captatore informatico nella prassi degli Stati e nell'ordinamento italiano: il difficile equilibrio tra prevenzione dei reati e tutela della riservatezza informatica
Francesca GRAZIANI
2019
Abstract
The use of malware in criminal proceedings has increased over the past years due to its effectiveness in fighting crime. In this respect, the aim of this article is to analyze the complex legal issues related to the use of computer viruses, with specific reference to the balance between the need to prevent and counter crimes and the safeguard of individual rights (i.e. the right of defense and the protection of privacy). This article is divided into three main parts. First, it points out that the use of trojans is hardly regulated both by States and by judicial cooperation mechanisms. Second, the focus shifts to the jurisprudence of the ECtHR and the EUCJ as regards mainly the secret surveillance and mass surveillance programmes. Finally, the article examines the Italian legal system, where the recent intervention of the Legislator seems to be open to criticism as it is largely inconsistent with European standards on individual rights and the protection of privacy.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
