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

BOOKS AND ACADEMIC ARTICLES 2014 in Revista de Concorrência & Regulação, Ano IV, n.º 16, Outubro/Dezembro de 2013, pp. 195-243.

The use of malware as 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 cybercriminals. In Portugal, we believe that this investigatory 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.