Have you ever had the sensation that some was spaying you while you were working on your computer? Are you one of those who has the laptop´s camera covered? Because I am, and I have had this sensation more than one time. The next question we should ask to ourselves is, is this possible?, can anyone be spaying us while we check the state of our bank accounts, or while we buy Bitcoin? or while we spy our ex on Facebook? or even worse, while we see porn? Sadly the answer to these questions is always yes, it is possible, although nowadays is not as important as you think, the cookies which we always install in our computer without think it you times, do most of this job and we don’t look very concerned.
But it´s true that the cookies are different, are not as aggressive as someone watching you through your webcam, a cookie stores information about your habits of navigation in internet, it can make a profile of your tastes, it can foresee what color is your favorite, or mark of clothes, but it cannot know what movies you have in your computer, or how many emails you have without read, or listen to you while you are talking with a friend, or at least, this is not what a cookie is supposed to do. When we cover the camera of our computer is because we want to avoid mostly a trojan, this is computer program which is specifically designed to spy us, and its application can be very broad, becase it can give access to a third party to all the information we have in our computer, the spy can watch the desk of your computer while you work, or copy all the documents you have stored in it, or see whether you download movies of minors having sex.
So, the next question you should ask to yourself is, is this legal? And the answer is yes, but only if it is done by the police, and they have a warrant. Now you have to be trembling in front on your computer, thinking in all you have said, watch or download in the last months, don’t be afraid, it only will happen if the police suspects that you may have committed a crime. All the measures of investigation regulated in the Spanish Penal Procedural Law (in Spanish Ley de Enjuiciamiento Criminal, henceforth LECrim), which affect to any of the rights contained in the article 18 of the Spanish Constitution (henceforth, CE), are subjected to some requisites, principles which they have obligatorily to comply, they appear all in the article 588 bis a) LECrim, but before they appear in the law they have been developed by the Spanish jurisprudence, for me are specially important two, the principle of speciality or the proscription of the any investigation which is not aimed to solve concrete crime, and the fulfillment of the principle of proportionality. The former implies that, the police, which is usually who ask for this measure of investigation to a judge, has to have first evidences that a crime has been committed or will with all probability be committed, the police has to have strong evidences, has to give to the judge who have to approve the measure solid proofs, in other words, the necessity to search a computer remotely has to be precede of a prior investigation where solid proofs have been found incriminating a concrete person. The latter, is probably the most important principle in all the criminal law, this principle of proportionality is compounded by three other principle, 1) the principle of suitability, the measure has to be adequate to fulfill its purpose, 2) the principle of necessity, cannot be other measure less harmful to the achievement of its purpose, and 3) the principle of proportionality in strict sense, it has to be balanced, from it has to derive more benefits to the general interest than damages to other goods of values in conflict. Therefore the police cannot choose a computer at random and start and investigation, neither can choose a person because it hates him and see whether it can find something incriminating him. Nor could always use the remote search of a computer as the proper measure, because depending of the crime, depending whether the crime passes the test represented by the principle of proportionality, this measure of investigation will be approved by the judge or not.
This last feature is very important, the measure always has to be previously approved by a judge, necessity which cannot be understood without known the rights affected when the police search remotely a computer. They are three rights, the right to the intimacy (art. 18.1 CE), the right to the secret of the communications (art. 18.3 CE), and the right to the data protection (art. 18.4 CE). The right to the intimacy guarantees a ambit of our private life which cannot be known by others without our permission, it creates a sphere around a person which cannot be trespassed without his consent. The right to the secret of the communications, protects the act of communication and the message transmitted, in other words, a message cannot be intercepted and cannot be known without the consent of the parties involved in it. And the right to the data protection, guarantees the person the control over his data, it is a faculty of the citizen who may oppose to the treatment of his personal data to ends which are not those originally approved by him. In reality the right to the secret of the communications, and the right to the data protection, are specific manifestations of the right to the intimacy, although the Spanish tribunals have estimated adequate to understand them as three independent and autonomous rights. We already know, that they share an article, the article 18 of the CE, but it doesn’t mean that the three of them have the same protection, the only right expressly protected by a warrant is the right to the secret of the communications, while the right to the intimacy and the right to the data protection have been developed by the Spanish Tribunals, mainly the right to the intimacy, which is the most used. The Spanish Tribunals have said that, generally the police will need a warrant to adopt a measure of investigation which may interfere with the right to the intimacy of the investigated, but there are exceptions which are possible thanks to this silence of the CE with respect to the necessity of a warrant, such exceptions have to comply with four requisites: 1) the existence of a legitimate, constitutional end, as the investigation and prevention of the crime, and more concretely, the determination of the relevant facts to the criminal process; 2) there must be an express authorization in the law; 3) the act of the police which interferes with the right to the intimacy, has to be proportional with its end, it has to comply with the principle of proportionality we have seen above; and 4) the police has to act under the pressure of the urgency, it has to act and think fast.
But if I am honest, the right which protect the information which is in a computer, is not any of them. It is the right to your own virtual environment, whose development has be the consequence of years of work of the Spanish Tribunals. At the beginning the Spanish Tribunales did what we have seen above, when they saw a computer they studied the data used by the police, and determined if its actuation was legal. For example, if the police had accessed to the numbers of telephone of a smartphone without a warrant, it was legal, because this numbers were protected by the right to the intimacy, on the contrary if the police had accessed to the record of phone calls in a smartphone without a warrant, it is was ilegal, because the record of phone calls in a smartphone is protected by the right to the secret of communications. The same happened with an email, if the email was open, it was protected by the right to the intimacy, on the contrary if the email hadn’t been opened yet it was protected by the right to the secret of the communications. But we see clearly, that this efforts of interpretation the only thing that were generating was confusion and, as I have said, finally the Spanish tribunales developed the right to your own virtual environment, it meant that from then on any information which is obtained from a smartphone or a computer would need a warrant, a good example is the sentence of the Spanish Supreme Tribunal 342/2013 of April, 17 2013, whose motivation recognized the necessity of a new right which might protect without complex argumentations all the data contained in these devices of massive storage of information.
The problem of this measure of investigation, the remote search over computer hardware, is that it is specially harmful to the right to the intimacy of those suffering it. Such a measure of investigation, may have access in real time to all what is happening into a computer, to all its data, to all its conversations, to the all the websites visited, therefore the legislator has decided that the principle of proportionality, the principle of speciality, the rest of the principles of the article 588 bis a), and the warrant are not enough to delimit the cases when can be searched a computer remotely, adding to them the concrete types of crime which can be solved through this measure of investigation: 1) crimes committed inside a criminal organization, 2) crimes of terrorism, 3) crimes committed against minors or incapables, 4) crimes against the constitution, of treachery, or relatives the national defense, and 5) crimes committed through computer hardware, or other technology of information, of telecommunication or service of communication.
And we have to add one more thing, the measure is limited temporarily, it can only be used by the police one month, although it can be extended for equal periods until it has lasted three months.
Hence, be careful with what you do with your computer, the police may be watching you, and TOR will not help you to avoid it.
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