The undercover agent and his computer science specialty: pending legislative challenge in a digitized scenario (analysis of the figure in the Draft Law on Criminal Procedure)

Abstract

The figure of the undercover agent in LO 5/1999 was a great advance in the investigation of crime and its incorporation by the Spanish legislator was belated. However, in the almost two decades that have passed, the advances in technology and its use by the criminal world made it clear that the classic undercover agent had to specialise in order to make use of the various information and communication technologies. This figure is introduced into the Spanish criminal procedural system by Organic Law 13/2015, and has allowed the development of undercover computer investigations, which are very necessary in current forms of criminality. However, the gaps and shortcomings of this figure are evident, in its practical application, partly due to the fragmented and scarce regulation of it in the LO 13/2015. There are numerous issues that remain uncovered by the legislator. The Preliminary Draft of the LECrim of 2020 develops a much broader casuistry, with different levels of activity of the undercover computer agent (entry into closed communication channels with a false identity; exchange of illicit files and analysis of algorithms and, finally, capture and recording of images even in the home) and their corresponding judicial authorisations. These questions and others, such as the delimitation of the agent provocateur, are also dealt with in the jurisprudential analysis, which has been completing the doubts and problems generated by the classic undercover agent and the computer agent.