Pegasus Software and Fair Criminal Proceedings

Abstract

The study discusses the functionalities of programmes created to provide special services with the possibility of taking control of mobile devices. By presenting cases of the use of such systems for political purposes and by describing a situation in which incriminating material was fabricated through the use of such systems, the author argues that there is a need for increased judicial oversight of the secret services’ activities and for a change in the approach taken by criminal trial authorities to material secured in terminal devices. In view of the possibilities offered by spyware, such material may serve as the basis for findings unfavourable to the accused only after external interference has been excluded, which is all the more difficult because the activities of the secret services are covered by secrecy. The aim of this article is to initiate a discussion on the use of material obtained from the memory of mobile devices in criminal proceedings and to consider the direction in which changes to the law should be undertaken in order to reduce the related threats to fair proceedings.