Undercover agent

Undercover or secret agent, also known colloquially as a "mole", is the infiltrator in an organization that serve another. The moles can engage in either illegal activities, such as espionage or provocation, or legal activities, in the case of members of the police who investigate social, political, union or illegal or criminal organizations.

In this second case, the mole acts with judicial authorization. In this way, "the undercover agent investigates the crime from within the criminal organization, acting without exceeding the framework of basic constitutional guarantees and taking advantage of the opportunities and facilities offered by those already predisposed to commit a criminal act. ” (M. Bohermer). This predisposition, the pre-existing fraud, is what differentiates his function from that of the agent provocateur.

Since some crimes can only be discovered and proven if the bodies in charge of prevention manage to be admitted into the circle of privacy in which they take place, in some judicial systems the judge is allowed to appoint by resolution agents of the active security forces to covertly introduce themselves as members of criminal organizations, in order to obtain information about their members, operation, financing, etc. The rule is the maintenance of the strict secrecy of the performance of the undercover agent, and the exception is supported by the absolutely essential nature of the witness contribution. In the event of the disclosure of the real identity of the undercover agent, his situation of personal danger is assumed by law and obliges his protection when it occurred, through the appropriate measures ordered before the witness statement was made.

The first historical text referring to spies is The Art of War by Sun Tzu, written around 500 B.C. C. The ancestors of espionage were the ninja of feudal Japan. The fictional character James Bond is an example of a secret agent.

Consequently, the figure of the undercover agent is regulated in the Royal Decree of September 14, 1882, in article 282 bis LECrim. The undercover agent with prior judicial authorization, from the Investigating Judge or the Public Prosecutor, is in charge of infiltrating a criminal organization, in which he is authorized to use an alias, investigate, interact with members of the criminal organization, among others. In other words, the figure of the undercover agent obtains information by infiltrating the activities of organized crime. When the agent has obtained information, he must bring it to the attention of the investigation as soon as possible.

It is worth noting the existence of the figure of the undercover computer agent.

The undercover computer agent corresponds to officials of the Judicial Police who act through an assumed identity. In order to clarify the facts constituting crimes through communications maintained on social networks or other forms of internet connection. They specifically require judicial authorization to act in closed communication channels, and require special authorization to exchange or send illegal files due to their content in the course of an investigation.

Therefore, the undercover computer agent, as indicated in Organic Law 13/2015, of October 5, amending the Criminal Procedure Law to strengthen procedural guarantees and the regulation of technological investigation measures, with prior specific judicial authorization for it, may exchange or send illegal files by itself due to their content and analyze the results of the algorithms applied to identify said illegal files.