2019 Vol. 2, Issue 1


VIRTUAL UNDERCOVER AGENT

Release date:2019-07-21
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VIRTUAL UNDERCOVER AGENT

 

Jaqueline Ana Buffon[1]

 

 

ABSTRACT: Cybercrime has created the need of adapting the legal system, since a progressive innovation in procedures concerning proper investigation tools and mechanisms is necessary to face the new means of committing criminal offenses and the new criminal behaviors that have appeared in the cybernetic environment. The Virtual Undercover Agent is one of those key investigation procedures to identify and investigate cybercrimes. The actions of the undercover police agent will be authorized and delimited by a court order. It is important to highlight the difference between cyberpatrols’ actions in open networks, and the actions of the undercover agent itself in restricted networks, since the latter needs to have a Court permission that will remove the guilt in illicit acts committed, within the limits defined.

 

KEYWORDS: Virtual undercover agent. Cybercrime. Digital evidence. Cyberspace. Undercover agent. Criminal investigation in cyberspace. Agent provocateur. Sting operation. Intelligence gathering in open sources. Controlled action.

 

I. Introduction – The need of new investigation tools in face of the Internet as means or place for committing criminal offenses

Nowadays, the Internet is one of the most common forms of criminal conducts. That reality is a result of the features of cyber environment that imply hurdles in investigation, motivating criminals to use this new means to commit crimes. Some of these features include:

a. anonymity – the sophisticated use of cyberspace and Information and Communication Technology (ICT) often allows for anonymity, which results in greater investigation challenges, particularly when the Dark Web[2] is used through The Onion Router[3] or other tools.

b. geographical scope – the need of effective international cooperation to succeed in investigations considering the diversity of places comprehended between the commission of the illegal action and the result(s), besides the use of servers in places that could be considered ‘virtual havens’.

c. cost/benefit of the employed means – the immediate communication provided, with no physical barriers for action. The reach and spread or dissemination occur in no time at minimum cost. 

With this new scenario, new investigation techniques were needed. Traditional methods are insufficient and often ineffective for facing cybercrime. In the face of new forms of crime and new means to commit existing crimes, the virtual undercover agent becomes a key tool for chasing crimes that use technology.

 

II. Concept of virtual undercover agent

The Brazilian legislation does not provide an exact concept for virtual undercover agent. Therefore, it is necessary to analyze other legal systems regarding this subject to reach a definition for this investigation tool.

 

A. Brief History

a) International Scenario

Initially, the European Parliament and Council 158 approach the investigations made by undercover agents or agents with false ID in Directive 2014/41/UE[4], art. 29.

In Spain, initially under art. 282 bis, in Organic Law no. 5/1999, modified by the LO no. 15/2003[5], it was necessary to fulfill two requirements to use undercover agents: a) the investigation had to be related to organized crime activities; and b) these crimes had to be among those listed in item 4 of the same article.

However, considering the use of new technologies for committing crimes, there was a great evolution in the Spanish legislation, when Law no. 13/2015[6] came into force, currently allowing to use an undercover agent in investigations of crimes not committed by criminal organizations and covering many other crimes, not only those listed.

Therefore, with Law no. 13/2015, the Spanish legislation brought two new paragraphs to art. 282 bis, improving action for the new demands in facing cybercrimes by including two new topics:

6. The criminal investigation judge will be able to authorize the Judiciary Police to act under supposed identity in communications kept in closed channels with the goal of elucidating some of the offenses referred in item 4 of this article or any offense among those listed in article 588 ter a.

The computer undercover agent, with specific authorization, may exchange or send for him/herself files illegal in content and analyze the results of the algorithms applied for the identification of such illegal files.

7. In the course of an investigation using an undercover agent, the competent judge will be able to authorize the capture of images and the recording of the conversations that are maintained in the meetings set between the agent and the investigated individual, even when they occur inside a house.[7]

In the Argentinian legislation, with Law no. 24.424/1995[8], the undercover agent could already be used in investigations as long as some limits were respected, such as the nonexistence of other means to achieve the investigations goals. Besides, the affirmative defense (exclusion of culpability) did not include the action of the undercover agent that resulted in crime leading to high risk to life or to an individual’s physical integrity or causing severe physical or moral suffering to other people.

After analyzing the legislation of several countries concerning cybercrime, it is possible to see that there is some consensus as to a few conditions regarding the use of the undercover agent[9]:

a. the infiltration occurs in a network of criminals;

b. the real identity of the undercover agent is hidden; and

c. in most of the countries, the undercover agent must belong to State agencies.

 

b) In Brazil

In Brazil, initially the undercover police agent would only be used in cases of drugs, gangs, criminal association or organization, according to Law no. 11.343/2006 and previous ones[10].

With Law no. 12.850/2013, the use of undercover agents was applicable to other crimes, namely: (a) criminal organizations listed in art. 1, § 1; and (b) the situations indicated in § 2, both in the same law.

Paragraph 2º[11] allowed investigations in the virtual world in international scale, especially regarding crimes related to child pornography[12], by including:

I – criminal offenses provided for in an international treaty or convention when the execution started in the Country and the result has or should have occurred abroad, or reciprocally;

II – terrorist organizations, understood as those aimed at the practice of legally defined acts of terrorism.[13]

The innovation of this law is the non-requirement of the existence of a criminal organization to permit the use of police infiltration, as long as they refer to the crimes dealt with in Section 2. This legal openness is very relevant, since in the virtual world many criminals tend to use the same environment, like a Forum, for instance, which does not necessarily mean they are acting in an organized way. In many crimes, such as sharing child pornography images, criminal users act individually, at their own risk, without any previous accord.

In May 2017, Brazilian Law no. 13.441/2017 comes into force, adding the Section V-A to Law no. 8.069/1990 – Child and Adolescent Statute – which specifically addresses the virtual infiltration of undercover police agents.

Law no. 13.441/2017 lists the crimes included, namely arts. 240, 241, 241-A, 241-B, 241-C and 241-D in this Law and arts. 154-A, 217-A, 218, 218-A, and 218-B of Decree-Law no. 2.848, of July 7th, 1940 (Criminal Code).

However, it is important to highlight that the use of virtual infiltration had been present in Brazilian legislation long before the publication of the most recent Law[14], where, for the first time, an explicit reference was made to the application to digital environment.

Despite the reference of the crimes list indicated in 2017 legislation, Laws no. 11.343/2006 and no. 12.850/2013 are still in force regarding the crimes stated, except for the crimes against sexual dignity of children and adolescents, since there is a new specific law for those crimes.

For the analysis of the aforementioned legislations and their implications in our virtual investigations, some core aspects will be now approached.

 

III. Investigative Actions in the Digital World

A. Cyberpatrol[15]: in open communities

With the arrival of new Information and Communication Technologies (ICTs), there has been a great change in people’s lives. Agility and other advantages have created – and still do – new habits and routines that have improved people’s lives. On the other side, the lack of care in the use of the Internet and the vulnerabilities of the cybernetic world have also allowed for ill-intentioned people to look for their victims in an easier and faster way.

Therefore, digital world users need to learn how to protect themselves and how to apply such knowledge.

Likewise, the State needs to work on the prevention of offenses in the virtual environment just like in the physical environment. That is where arises the possibility of the cyberpatrol, which means the investigation of crimes in public virtual places. An agent who carries on investigations or searches in open networks that can be done directly in an autonomous way or with the use of mechanical procedures does not need a court order.[16] However, that cyberpatrol obviously does not allow the agent to take actions, which might be authorized in a second stage, after the analysis and decision of the Judge according to the undercover agent, his or her characteristics, permissions and affirmative defense (exclusion of culpability).

In Spain, long before the legislation changed, in 2015, in art. 282 bis[17] this possibility was already accepted, as can be verified in the decision of the Supreme Court 767/2007[18] of October 3rd:

In fact, when performing their routine surveillance tasks to prevent computer crimes, the authority agents happened to find a possible offense related to child pornography dissemination. They accomplished the necessary investigations, and only when they were convinced that they were in fact facing presumed offensive actions, they drafted the report that was sent to the Court of Appeal, where the respective legal information proceedings were elaborated and, after the claim was filed in the Criminal Investigation Courts, the Preliminary Proceedings were written. This proceeding is absolutely correct and deserves no objection.

Most of the times, for an investigation to succeed it is necessary to simultaneously use two environments in order to obtain the criminal authorship and materiality of the offenses. The information exchanged between open and closed networks, including those obtained in the TOR network,[19] could be decisive in elucidating crime investigations related to the virtual world. Therefore, it might be necessary to provide a court order to use the resource of police agent infiltration after discovering – through cyberpatrol actions – evidence of materiality and criminal responsibility that require access to closed networks in order to clarify and access the facts and the definition of responsibility for illegal actions.

When considering art. 190-C of Law no. 13.441/2017, some might defend the need for court orders when the investigator uses pseudonyms or alias in open network investigations. However, there is no obstacle when considering the characteristics of that means in the Internet. 

When analyzing it from a different perspective, the simple fact of using an alias in virtual environments that do not require approval for entry from other previous user(s) of that place does not necessarily raises the need to discuss court approval, since those who use the digital world are already aware that they cannot be sure of who is on the other side. Otherwise, the investigator would be required a precondition that is not required from other users. Therefore, the undercover agent regulation has come to regulate closed networks.

 

B. Virtual Undercover Agent: Closed Networks

Closed networks have become a very attractive environment for criminals, since technology development fosters solutions that facilitate crime.

The Police European Service (Europol)[20] mentions situations that certainly occur in many different places of the world at all times when it comes to child sexual exploitation:

Peer-to-peer (P2P) networks and anonymized access like Darknet networks (e.g. Tor). These computer environments remain the main platform to access child abuse material and the primary means for non-commercial distribution. These are invariably attractive for offenders and easy to use. The greater level of anonymity and the strong networking possibilities offered by hidden internet that exists beneath the ‘surface web’ appear to make criminals more comfortable in offending and discussing their sexual interests. Live-streaming of child sexual abuse. Facilitated by new technology, one trend concerns the profit-driven abuse of children overseas, live in front of a camera at the request of westerners.

To a lesser degree, there is also some evidence that forms of commercial child sexual exploitation such as on-demand live streaming of abuse is also contributing to the rise of the amount of CSEM online.

In Brazil, for the first time there has been a large investigation in the deep web, using an unprecedented tool designed by the Federal Police, called Darknet Operation[21], through which hundreds of users who were sharing child pornography videos and pictures were identified.

When having access to closed networks, it is necessary to have an invitation and/or to gain the trust of the users of that virtual environment. Hence the relevance of the online undercover agent, who will have to be very careful to comply with all the limits imposed by law to obtain a valid proof. One of the greatest reasons for such demand is the peculiarity regarding communication privacy rights that must be considered by competent authorities in the cybernetic environment of closed networks, as appropriately stated by the Spanish Prosecution Service (Ministério Público Español) Javier Ignacio Zaragoza Tejada (2017, p.8): 

[...] the computer undercover agent goes beyond. He or she has as goal to act in closed communication channels, that is to say, in internet private forums where there are numerous and diverse internauts sharing – either legal or illegal – expressions, opinions or files. Therefore, it means to say it is the infiltration of a state security force agent in a private-character forum, where she or he will observe the communications maintained among the different members, which implies an intrusive action in the right to secrecy of communication. That is why, differently from the conventional undercover agent situation and action, where it was necessary to agree on a measure of intervention in communications that would require an independent court order, the same would not happen in the case of the computer undercover agent, in which case the very nature of his or her action would implicitly present the possibility of accomplishing actions that render the right to secrecy of communications vulnerable, which is acknowledged in article 18 of our constitutional text – of course, when they refer to the communications kept open within such closed communication network environment, and obviously not to the private conversations kept between the members of such channels, either inside or outside that network. (TEJADA, 2017, p. 8)

Many of those environments have as their goal not only committing criminal offenses, but also exchanging knowledge with other offenders on how they should act to succeed in their criminal endeavors. Those ‘crime manuals’ are usually found in the deep web, due to the protection feature that the anonymity of such digital media offers to its users.

It is also in that sense that Europol’s words can be understood when declaring the existence of experience exchange among offenders: ‘Networking and forensic awareness of offenders. Offenders learn from the mistakes of those that have been apprehended by law enforcement.’[22]

 

C. Requirements to be used by the virtual undercover agent (UA)

As previously stated, the increasing uses of new technologies and their benefits brought along the need of taking new measures against crime, since traditional methods were not enough for the elucidation of illegal facts. In Brazil, legal innovations are still slow and shy in this area, considering the virtual reality already in place and the steps taken by other countries more concerned with this subject.

The following general requirements applicable to the uncover agent (UA) will be covered initially, without consideration to which of the three legal frameworks above-mentioned (heading 2) will be the legal support for obtaining court permission: (a) crime evidence, which can be identified also in open networks; and (b) nonexistence of another possible means for obtaining the necessary evidence.

When it comes to crimes committed in the Dark Web, it is virtually impossible to obtain identification through other means different than UA. According to Adriana Shimabukuro and Melissa Garcia Blagitz de Abreu e Silva (2017, p. 256-258), ‘These pages can only be accessed through specific softwares for surfing in anonymous and cryptographed environments, such as TOR, invisible Internet Project (i2p) and FreeNet.’

It is important to highlight that the anonymity offered by such networks highly jeopardizes the investigation and it is the reason for the great number of new users.

Therefore, it is relevant to cover here the functioning of The Onion Router (TOR) network, a free tool that makes it very hard to identify the authors who use it to commit crimes.

According to Adriana Shimabukuro and Melissa Garcia Blagitz de Abreu e Silva (2017, p. 258):

The original message is cryptographed and follows to its destination ‘through a sequence of proxies (onion routers) that forward the messages through an unpredictable path’, going through at least three different servers. (Carvalho, 2010).

The millions of nodes available on the Internet are randomly located by the TOR application, which makes spying very difficult, since it ensures a private connection and does not leave traces, because none of the nodes knows about the source or the destination of the request.

Cryptography prevents an attacker to spy on the content of the message. One of the advantages of the union routing is that it is not necessary to trust in each router in the network: even if one or more pieces of equipment are breached, it is still possible to obtain secure communication, because each TOR router accepts the messages, re-encrypts them and sends them to the next point without being able to modify them or access their content.

Only the first and the last nodes of the communication are not cryptographed: all the nodes in the middle of the chain are cryptographed and receive information only from the immediate previous node and forward the content for the immediate next node, without knowledge of the true source and destination of the message. (SHIMABUKURO; ABREU E SILVA, 2017, p. 258)

Also for the analysis of the requirement mentioned in item (b) above, the request from the Brazilian Federal Prosecution Service (Ministério Público Federal) or from the Chief of Police should demonstrate the circumstances that evidence the nonexistence of the other possible means – that is to say, that the action is essential to identify the criminal responsibility and/or materiality of the offense, and that the continuity of the investigations will be unsuccessful without the use of UA.

 

D. Limits of the virtual undercover agent’s actions

Art. 190-A, I, of Law no. 8.069/1990, introduced by Law no. 13.441/1990, sets forth that the sentence will provide the limits for obtaining evidence, after hearing the Brazilian Federal Prosecution Service.

These limits set forth in the sentence will be crucial for the control, by the judge and the Brazilian Federal Prosecution Service, of the actions carried out by the UA, in the digital environment, in order to set out: (a) the legality of obtained evidence; and (b) the checking of UA’s actions covered by the affirmative defense.

The sharing of material containing child pornography is not express in the law. However, one cannot exclude such possibility considering the characteristics of the virtual environment in which the offenders act the most, a place where they feel more protected. This need is even greater when the criminals are acting in the Dark Web, considering the huge investigation obstacles brought by the high degree of anonymity.

As well put by Luis Lafont Nicuesa, member of the Spanish Federal Prosecution Service (2015, p. 9), when discussing this topic:

The possible use by the UA of child pornographic material is necessary so that the agent can effectively proceed with his or her investigations.

As stated by URIARTE VALIENTE (8), to access a private forum ‘you have to be previously invited, which can only be possible if you demonstrate the consumption or addiction to such material, having to previously provide child pornography material’. Besides, states the author, ‘[...] once you are inside those groups, the activity of each member is controlled by the group, demanding the agent an active attitude to be able to stay there, as is usually the case of the regular exchange of child pornography’. (NICUESA, 2015, p. 9)

The goal of these closed networks’ users is precisely to preserve their identities and that of their activities, thus avoiding that investigators enter there. As stated by Javier Ignacio Zaragoza Tejada, member of the Spanish Prosecution Service, (2017, p. 9) ‘[...] that sharing, as declared by criminals, is a personal implication in the illegal activity that is carried out in that place.’ 

Thus, when illegal files are sent, due to their content, this generates trust by the offender(s) in relation to the UA, which allows the continuity of criminal activities that were already taking place in that virtual environment much before the investigator’s entrance.

It is worthwhile, however, to take some essential precautions when it comes to choosing the video or image to be shared, in order to comply with the objective of rule and principle of need and proportionality, such as: (a) observe the victim’s age, excluding materials that contain younger children and that contain sexually explicit scenes; (b) apply, if possible, filters to graphic or computer-projected images so as to reduce exposure to a minimum; (c) besides the above-mentioned measures, the file in question should already be in use in the Internet for such purposes, that is to say, make sure not to introduce something new into the digital world.[23]

Thus, by considering the seriousness of activities that will be performed by the UA in the closed groups, we reiterate that the principles of necessity and proportionality must be clearly demonstrated to support the use of such extreme measure. According to Javier Ignacio Zaragoza Tejada (2017, p. 9):

In some occasions, in order to be able to infiltrate in certain private communication channels with illegal features, it is not enough that a state agent subscribes or enters it under a different ID, or under a certain nickname or alias. The severity of the illegal actions developed in such forums, together with the interest the users have in preserving their real identities in face of tracking or investigation actions by the police forces, impose additional security measures to prevent, precisely, their infiltration. Therefore, for instance, it is common that in certain forums of child pornography, or cyber jihadism, or those related to the planning and execution of attacks to computing systems, the access is conditioned to the previous invitation of some of its members and even the submission of illegal material (pedophilia, terrorism, etc.) as an expression of a personal implication of the illegal activity that takes place in that forum.

 

E. Specificities of the controlled action during police infiltration

UAs will possibly need a considerable amount of time to identify criminal responsibility  and materiality of offending users, so that search and seizure warrants can be conducted later, preferably on the same day throughout the country, once online communication is immediate and may compromise the acquisition of the media that will strengthen the evidence of detected crimes. During this evidence collection time, there will be a controlled action period, when police or administrative intervention is delayed, but under constant follow-up so that the evidence is searched for in the most adequate timeframe for the success of investigations.[24]

Redoubled care should be given when facing investigations relating to child pornography crimes, since the analysis of images and conversations must be constant and very careful, because news of potential or actual sexual abuse may emerge, with or without the production of images for possession or sharing. In such situations, despite the continuation of controlled action, aiming at achieving the proposed goal, ideally this target (or targets) should be immediately removed and forwarded to the Court in charge of the area where the crimes take place, considering the serious danger to the child or teenager. In addition, in order to avoid damaging the virtual investigation and the consequent controlled action, a direct contact with the relevant authorities is pertinent. These authorities will receive the material referring to the investigate party(ies), an account of its origin and the reason why the search and seizure warrant against those potential minor abusers was conducted before the end of the controlled action.

Art. 190-A, § 1st covers the partial reports that may be requested by the legal authority and by the Brazilian Federal Prosecution Service during the virtual infiltration period. Such partial reports proved to be crucially important, both to follow the existence of a potential situation of vulnerability that may require urgent and immediate action, even when not in the end of investigation, as above-mentioned, as well as to ascertain whether the UA’s action have complied with the sentence limits. This continuous analysis is of utmost importance to obtain legal evidence. It is a hard, but necessary work.

 

 

 

 

F. Difference between undercover agent (UA) and agent provocateur (AP)

There are major differences in the undercover agent and the agent provocateur’s actions. The former is protected by the law and has clearly determined limits set by the sentence, while the agent provocateur’s actions will render the evidence invalid.

These are the main differences between them:

 

a) Undercover Agent:

- aims at collecting information – the observation of a virtual closed environment is crucial to look for data that can clarify or identify criminal responsibility and/or materiality. The analysis of relations among people and/or companies may be fundamental for the elucidation of crimes that use the digital environment as an end or means for the pursuit of their goals;

- passive stance – the undercover agent’s action will not have the goal of making the investigated party commit crimes. Quite the opposite. However, it is important to clearly bear in mind that this does not exclude the possibility that this very state agent can commit an act that can be characterized as a criminal offense, but only within the limits set forth by the sentence;

 – gains the suspect’s trust – criminals are very careful when it comes to allowing a new member into their closed networks. The fear that it may be an investigator is part of this precaution. Thus, undercover agents must overcome such limit, so that they can become part of that group, as a way of collecting the necessary information.

 – has an accessory participation – as mentioned above, the dominion over the criminal conduct belongs exclusively to the offender. Undercover agents must be aware to their duties in the environment they examine, collecting evidence and strictly complying with the provisions laid out by the Court.

 

b) Agent Provocateur:

Unlike the undercover agent, completely different actions characterize an agent provocateur, namely:

a. instigate or induce the investigated party to commit crime[25] – that is the case when the criminal is not self-motivated; 

b. have an active stance – the state agent onsets the mechanism that gives rise to the criminal offense;[26]

c. the police agent holds control over the fact – it happens when the investigator is a key player in a crime.

The consequences of the agent provocateur’s actions will be the impossibility of the crime accomplishment, exactly the opposite of the undercover agent’s achieved outcome, which does not interfere with the practice of crime. In order to characterize the invalidity of this evidence, it is also necessary that the agent provocateur has simultaneously taken all needed measures to make crime impossible.

Therefore, the conclusion is that the use of undercover agents is a legal activity, completely compliant with the Brazilian legislation and Constitution.

 

IV. Conclusion

Despite the existence of the undercover agent tool in Brazil, it still lacks a more robust legal framework.

The international scenario has shown the need for raising the institutional awareness towards studying and broadening the forms to tackle cybercrimes, a very demanded domain considering the widespread use of ICTs. Our country urgently needs to enhance its legislation regarding this theme. One of the aspects is the range of the undercover agent use regarding many other equally serious offenses.

The concern over cybersecurity and cybercriminality is worldwide. The European Commission ‘has proposed on September 13th, 2017, a package of cybersecurity reforms, because “the Internet of Things” is already a reality and estimates are that by 2020 tens of thousands of digital devices will be already connected’.[27]

There are many criminal behaviors in the digital world demanding detection and investigation. Therefore, open and closed networks must be analyzed in order to enable an efficient outcome regarding the identification of criminal materiality and criminal responsibility; other forms of investigations must be used as well. However, it must be stressed that each online environment has its own features, which must be considered to attain due legal authorization when required, complying with principles of proportionality and necessity to obtain legal evidence.

Considerations are needed, with due and urgent reforms. The country has had some progresses, but at a very slow pace.

 

References

Brasil. Lei nº 12.850, de 2 de agosto de 2013. Define organização criminosa e dispõe sobre a investigação criminal, os meios de obtenção da prova, infrações penais correlatas e o procedimento criminal; altera o Decreto-Lei no 2.848, de 7 de dezembro de 1940 (Código Penal); revoga a Lei no 9.034, de 3 de maio de 1995; e dá outras providências. Diário Oficial [da] República Federativa do Brasil. Poder Executivo. Brasília, DF, 5 Agosto 2013. Edição Extra. http://www.planalto.gov.br/ccivil_03/_Ato2011-2014/2013/Lei/L12850.htm (visited 22 October 2017).

______. Lei nº 13.441, de 8 de maio de 2017. Altera a Lei nº 8.069, de 13 de julho de 1990 (Estatuto da Criança e do Adolescente), para prever a infiltração de agentes de polícia na internet com o fim de investigar crimes contra a dignidade sexual de criança e de adolescente. Diário Oficial [da] República Federativa do Brasil, Poder Executivo, Brasília, DF, 9 maio 2017. http://www.planalto.gov.br/ccivil_03/_Ato2015-2018/2017/Lei/L13441.htm (visited 22 October 2017).

Brasil. Supremo Tribunal Federal. HC 109703 SP. Relator: Min. Celso de Mello,Data de Julgamento: 6 abr. 2015, Data de Publicação: Dje-065 8 abr. 2015, https://stf.jusbrasil.com.br/jurisprudencia/180436138/habeascorpus-hc-109703-sp-sao-paulo-9952673-1420111000000 (visited 19 January 2018).

Espanha. Ley de Enjuiciamiento Criminal. https://www.boe.es/buscar/act.php?id=BOE-A-1882-6036 (visited 24 out. 2017.

______. Ley Orgánica 15/2003, https://www.boe.es/buscar/doc.php?id=BOE-A-2003-21538 (visited 24 out. 2017.

______. Tribunal Supremo. Sentencia nº 767/2007 de TS, Sala 2ª, de lo Penal, 3 de Octubre de 2007, https://supremo.vlex.es/vid/facilitacion-pornografia-infantil-p-31969904 (visited 22 October 2017).

______. Ley Orgánica 13/2015. Available at: https://www.boe.es/diario_boe/txt.php?id=BOE-A-2015-10725 (visited 24 out. 2017.

Europa. Child Sexual Exploitation. Retrieved from https://www.europol.europa.eu/crime-areas-and-trends/crime-areas/child-sexual-exploitation (visited 18 January 2018).

______. Diretiva 2014/41/UE. Retrieved from http://eur-lex.europa.eu/legal-content/PT/TXT/?uri=uriserv:OJ.L_.2014.130.01.0001.01.POR&toc=OJ:L:2014:130:TOC (visited 24 October 2017).

______. Reforma da cibersegurança na Europa. Retrieved from http://www.consilium.europa.eu/pt/policies/cyber-security/ (visited 24 October 2017).

Knijnik, Danilo. “O “agente infiltrado”, “encoberto” e “provocador”: recepção, no direito brasileiro, das defesas do entrapment e “da conduta estatal ultrajante” como meio de “interpretação conforme”: da Lei 9.034/1995”. Revista dos Tribunais. Ano 93. Vol. 826, p. 413-427, ago. 2004.

Nicuesa, Luis Lafont. “El agente encubierto en el proyecto de reforma de la Ley de Enjuiciamiento Criminal”. Diario La Ley. No. 8580 (2015). Sección Doctrina, Editorial LA LEY 10 jul. 2015. Ref. D-278, ISSN 1989-6913.

Pacelli, Eugênio. Fischer, Douglas. “Comentários ao Código de Processo Penal e sua Jurisprudência”. 9. ed. [S.l: s.n] (2017).

Shimabukuro, Adriana; Abreu, Melissa Garcia Blagitz de. “Internet, Deep web e Dark web”. In: Silva, Ângelo Roberto Ilha da et al. (Org.). “Crimes cibernéticos: racismo, cyberbullying, deep web, pedofilia e ponografia infantojuvenil, infiltração de agentes por meio virtual, obtenção de provas digitais, nova lei antiterrorismo, outros temas”. Porto Alegre: Livraria do Advogado. (2017).

Silva, Ângelo Roberto Ilha da et al. (Org.). “Crimes cibernéticos: racismo, cyberbullying, deep web, pedofilia e ponografia infantojuvenil, infiltração de agentes por meio virtual, obtenção de provas digitais, nova lei antiterrorismo, outros temas”. Porto Alegre: Livraria do Advogado. (2017).

Tejada, Javier Ignacio Zaragoza. “El agente encubierto online: la última frontera de la investigación penal”. No.1/2017. Parte Tribuna. Editorial Aranzadi. S.A.U., Cizur Menor. (2017).

 

 


[1] Federal Prosecutor, Member of the Support Group on Cybernetic Criminality, of Brazil's Federal Prosecution Service. Coordinator of the Darknet Operation at the Federal Prosecution Service. 

[2] It is a more exclusive and anonymous Deep Web network.

[3] Silva, Ângelo Roberto Ilha da et al. (Org.). “Crimes cibernéticos: racismo, cyberbullying, deep web, pedofilia e ponografia infantojuvenil, infiltração de agentes por meio virtual, obtenção de provas digitais, nova lei antiterrorismo, outros temas. Porto Alegre: Livraria do Advogado”. 2017. p. 258.

[4] Europa. Diretiva 2014/41/EU. Retrieved from http://eur-lex.europa.eu/legal-content/PT/TXT/?uri=uriserv:OJ. L_.2014.130.01.0001.01.POR&toc=OJ:L:2014:130:TOC (visited 24 October 2017).

[5] ESPANHA. Ley Orgánica 15/2003. Retrieved from https://www.boe.es/buscar/doc.php?id=BOE-A-2003-21538 (visited 24 October 2017).

[6] Espanha. Ley Orgánica 13/2015. Retrieved from https://www.boe.es/diario_boe/txt.php?id=BOE-A-2015-10725 (visited 24 October 2017).

[7] This and further quotations from Spanish are our translation.

[8] Argentina. Ley 24.424. Retrieved from http://servicios.infoleg.gob.ar/infolegInternet/anexos/0-4999/800/norma.htm (visited 18 January 2018).

[9] Zaragoza, Tejada. “El agente encubierto online: la última frontera de la investigación penal. Revista Aranzadi Doctrinal, n. 1/2017”. Parte Tribuna. Editorial Aranzadi, S.A.U., Cizur Menor. (2017).

[10] Previously, Law nº 10.217/2001 and Law nº 10. 217/2001 covered the subject.

[11] BRASIL. Lei nº 12.850, de 02 de agosto de 2013. Define organização criminosa e dispõe sobre a investigação criminal, os meios de obtenção da prova, infrações penais correlatas e o procedimento criminal; altera o Decreto-Lei no 2.848, de 7 de dezembro de 1940 (Código Penal); revoga a Lei no 9.034, de 3 de maio de 1995; e dá outras providências. Diário Oficial [da] República Federativa do Brasil [Official Gazette], Poder Executivo, Brasília, DF, 5 ago. 2013. Edição Extra. Retrieved from http://www.planalto.gov.br/ccivil_03/_ Ato2011-2014/2013/Lei/L12850.htm (visited 22 October 2017).

[12] Darknet Operation that triggered the first stage in 2014 and the second one in 2016.

[13] The text of Item III was therefore altered by Law no. 13.260/2016.

[14] Brasil. Lei nº 13.441, de 08 de maio de 2017. Altera a Lei nº 8.069, de 13 de julho de 1990 (Estatuto da Criança e do Adolescente), para prever a infiltração de agentes de polícia na internet com o fim de investigar crimes contra a dignidade sexual de criança e de adolescente. Diário Oficial [da] República Federativa do Brasil [Official Gazette], Poder Executivo, Brasília, DF, 9 maio 2017. Retrieved from http:// www.planalto.gov.br/ccivil_03/_Ato2015-2018/2017/Lei/L13441.htm (visited 22 October 2017).

[15] Tejada, Javier Ignacio Zaragoza Tejada. El agente encubierto online: la última frontera de la investigación penal. Revista Aranzadi Doctrinal, n.1/2017, parte Tribuna. Editorial Aranzadi, S.A.U., Cizur Menor. 2017.

[16] Realpe, Germán. Fuentes abiertas: herramientas para hacer inteligencia em la red, http://www.enter.co/chips-bits/seguridad/herramienta-inteligencia-internet/ (visited 19 January 2018.)

[17] Espanha. Ley de Enjuiciamiento Criminal. Retrieved from https://www.boe.es/buscar/act.php?id=BOE-A-1882-6036 (visited 24 October 2017).

[18] Espanha. Tribunal Supremo. Sentencia nº 767/2007 de TS, Sala 2ª, de lo Penal, 3 de Octubre de 2007. Retrieved from https:// supremo.vlex.es/vid/facilitacion-pornografia-infantil-p-31969904 (visited 22 October 2017).

[19] Silva, Ângelo Roberto Ilha da et al. (Org.). Crimes cibernéticos: racismo, cyberbullying, deep web, pedofilia e ponografia infantojuvenil, infiltração de agentes por meio virtual, obtenção de provas digitais, nova lei antiterrorismo, outros temas. Porto Alegre: Livraria do Advogado, 2017, p. 258.

[20] Europe. Child Sexual Exploitation. Retrived in https://www.europol.europa.eu/crime-areas-and-trends/crime-areas/ child-sexual-exploitation (visited 18 January 2018).

[21] Available at http://www.mpf.mp.br/rs/sala-de-imprensa/noticias-rs/mpf-rs-atua-na-segunda-fase-da-darknet-no-combate- -a-pornografia-infantil-e-juvenil (visited 19 January 2018).

[22] Europe. Child Sexual Exploitation. Retrieved from https://www.europol.europa.eu/crime-areas-and-trends/crime-areas/ child-sexual-exploitation (visited 18 January 2018).

[23] Nicuesa, Luis Lafont. El agente encubierto en el proyecto de reforma de la Ley de Enjuiciamiento Criminal. Diario La Ley, n. 8580, 2015, Sección Doctrina, Editorial LA LEY 10 jul. 2015. Ref. D-278, ISSN 1989-6913.

[24] Brasil. Lei nº 12.850, de 2 de agosto de 2013. Define organização criminosa e dispõe sobre a investigação criminal, os meios de obtenção da prova, infrações penais correlatas e o procedimento criminal; altera o Decreto-Lei no 2.848, de 7 de dezembro de 1940 (Código Penal); revoga a Lei no 9.034, de 3 de maio de 1995; e dá outras providências. Diário Oficial [da] República Federativa do Brasil [Official Gazette], Poder Executivo, Brasília, DF, 5 ago. 2013. Edição Extra. Art. 8º e seguintes, http://www.planalto.gov.br/ ccivil_03/_Ato2011-2014/2013/Lei/L12850.htm (visited 22 October 2017).

[25] Knijnik, Danilo. O “agente infiltrado”, “encoberto” e “provocador”: recepção, no direito brasileiro, das defesas do entrapment e “da conduta estatal ultrajante” como meio de “interpretação conforme”: da Lei 9.034/1995. Revista dos Tribunais, ano 93, v. 826, p. 413-427, ago. 2004.

[26] Brasil. Supremo Tribunal Federal [Supreme Court]. HC 109703 SP, Relator: Min. Celso de Mello, Data de Julgamento: 6 abr. 2015, Data de Publicação: Dje-065 8 abr. 2015. Retrieved from https://stf.jusbrasil.com.br/jurisprudencia/180436138/habeas-corpus-hc-109703-sp- -sao-paulo-9952673-1420111000000 (visited 19 January 2018).

[27] Europe. Reforma da Cibersegurança na Europa. Retrieved from http://www.consilium.europa.eu/pt/policies/cyber-security/ (visited 24 October 2017).





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