Electronic surveillance in confronting organized crime

balancing efficiency and garantism in the criminal process

Abstract

This article examines the use of electronic surveillance as a criminal investigation tool in the fight against organized crime. It starts from the premise that criminal organizations, increasingly transnational and embedded in the legitimate economy, pose a real threat to public security and to democracy itself, which pressures the State to seek more efficient means of investigation. After analyzing the evolution of the concept of criminal organization in foreign and Brazilian law – from the Palermo Convention to Lei (Statute) n. 12.850/2013 and the recent category of “criminal faction” created by Lei n. 15.358/2026 –, the article proposes a broad concept of electronic surveillance, encompassing the interception of communications, remote access to computer devices, geolocation, the monitoring of financial transactions and video surveillance. It argues that such investigative measures, since they entail a severe restriction of fundamental rights, are legitimate only when subjected to the proportionality test – with its prerequisites of legality and constitutional justification and its requirements of suitability, necessity and proportionality in the strict sense –, which mediates the balance between efficiency and due process guarantees (garantismo) in criminal procedure.