THE CHALLENGES OF CRIMINAL PROSECUTION REGARDING CYBERCRIMES: LIMITS OF DIGITAL EVIDENCE AND THE NEED TO ADAPT BRAZILIAN CRIMINAL PROCEDURE

Abstract

This article analyzes the challenges posed by cybercrimes to Brazilian criminal prosecution, emphasizing the legal and epistemological limits of digital evidence and the need to adapt criminal procedure. It begins with the premise that digitalization has expanded investigative capacity but also introduced traces that are intangible, volatile, dispersed, clonable, and susceptible to alteration, thereby requiring technical procedures capable of ensuring authenticity, integrity, and traceability. The study examines the tension between investigative efficiency and the protection of intimacy, private life, the confidentiality of communications, informational self-determination, and due process of law. It also analyzes the chain of custody provisions in the Code of Criminal Procedure and the use of hash functions as an integrity verification mechanism, without treating them as an absolute guarantee of authenticity. Case law from the Superior Court of Justice—particularly regarding cases involving WhatsApp and data extraction from electronic devices—highlights the difficulty of standardizing criteria for admissibility and evidentiary weight. The argument is made that adapting criminal procedure does not mean relaxing legal safeguards, but rather establishing specific parameters for the collection, preservation, documentation, forensic analysis, access, and adversarial scrutiny of digital data. The article concludes by calling for more detailed regulatory frameworks, technical training for public officials, forensic standardization, and strengthened judicial oversight, all while balancing the effectiveness of criminal prosecution with the protection of fundamental rights. In this context, procedural modernization must incorporate encryption and data science, featuring verifiable controls spanning from the initial discovery of the evidence to its secure judicial assessment.