Challenges in Prosecuting Crimes Using Digital Tools

The media, new technologies, and Artificial Intelligence undoubtedly offer countless advantages for work, study, and daily life. However, they also present significant drawbacks from a legal perspective and regarding the prosecution of computer crimes committed using these tools.

One of the problems is authorship, which is necessary to attribute a particular crime to someone. Behind computer systems or even social networks, it seems relatively easy to hide a person’s real identity, and it is also easy to use various VPN connections and different servers to obscure the trail that someone with malicious intent could leave when committing a crime. In other words, to the problem of authorship, we can add the difficulty of determining traffic data and navigation traces.

Legislative gaps and responsibility of technology platforms

Legislation is always far behind in responding to new problems (not even that new): Why don’t platforms mandatorily verify profiles, both for identity and for age? The solution doesn’t seem complex, but rather a matter of the will of these large technology companies, which, under the guise of unrestricted freedom (and in my view, misunderstood, since not everything is valid), override other safeguards that, at least in Europe, we have gained over many years. False profiles would be eliminated or limited from where they spread indiscriminately, regardless of the truthfulness of a news item, or they are used to commit various crimes. There are regulatory gaps and, above all, a lack of cooperation between states within the International Community.

And if we look at how this affects law practice, consider that this type of crime, where money can disappear from one account in one country and appear in another within seconds (globalization without control), requires agility in reporting to State Security Forces, the Public Prosecutor, or in the initial proceedings (essential) before the Court on Duty. Every hour that passes increases the potential damage and reduces the chances of success. Additionally, technology companies are not equipped to respond quickly to such requests.

The challenge of electronic evidence and the chain of custody

It is also important to guarantee the chain of custody of the evidence obtained and that any possible data transfer remains sealed for subsequent expert analysis. This brings us to the problem of the scarce regulation of electronic evidence, which has already been analyzed and studied by jurists and some prosecutors. Furthermore, in many cases, it may be necessary to resort to “preliminary evidence” to link the user to the criminal act and enable formal charges.

On the other hand, responsibility is very shared: users are still quite careless, yet we demand technological tools, paperless processes, or speed. However, legal professionals are accustomed to taking photos of case files with our phones, either on a desk or in a hallway. This is a solution for small files, but impossible for cases with multiple volumes of investigation. We are moving toward digitalization in the courts, but it is the same clerks who must scan and devote extra time from their ordinary work. There are no resources—easy to say, but that is the reality—and this particularly affects the investigation of crimes that involve the use of computer systems.

There are criminal organizations capable of launching massive attacks over the internet, anonymously, and able to erase their tracks once the crimes are committed. How do we fight this? Quick responses from the police, prosecutors, and courts; training for all agents and citizens; immediate digitalization with the necessary resources; real international cooperation; updating applicable legislation; imposing minimum controls on internet platforms and tech giants (and holding them accountable); and raising awareness among users.

Urgent needs: international cooperation, legislation, and awareness

There are some supranational conventions addressing this issue. The seed was the Budapest Convention on Cybercrime of November 2001, ratified by Spain in 2010 and complemented by the Additional Protocol to the Council of Europe’s Cybercrime Convention. Both the National Police and the Civil Guard have specialized units, and there are highly trained prosecutors (excellent professionals from my experience) in a dedicated unit, giving hope to those of us who defend the interests of clients who have suffered so-called “computer crimes.” However, this needs to be extended to all police stations, all courts, and legislators must be required to implement changes adapted to current punishable behaviors.

ARTICLE PUBLISHED IN CONECTADOS MAGAZINE OF THE CEF-UDIMA GROUP

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