Malware as a means of obtaining evidence and its implementation in the Brazilian legal system

• Autor(a) principal: Alves Magalhães Ribeiro, Gustavo
• Data de Publicação: 2022
• Outros Autores: Rodrigues Velloso Cordeiro, Pedro Ivo, Moretti Fumach, Débora
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Revista Brasileira de Direito Processual Penal (Online)
• Texto Completo: https://revista.ibraspp.com.br/RBDPP/article/view/723
• topic: malware; meio de obtenção de prova; direitos fundamentais; garantias processuais; malware; means of obtaining evidence; fundamental rights; procedural guarantees

Malware is a new means of obtaining evidence in criminal matters. Its operation takes place from the installation, in a hidden way, of malicious software on the equipment or computer system of a third party, from which it will be possible to access the data and information contained therein. Given its high degree of invasiveness, this technique has an impact on several fundamental rights and procedural guarantees of citizens. This article analyzes the main problematic aspects involving the use of malware in the investigative sphere and investigates whether its use in Brazil is possible in the current legal system and, in what terms, its use would be lawful. In the end, the article concludes by the impossibility of its use based on the current legislation and provides parameters that should guide a norm that aims to regulate this measure in Brazil in the future.