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"As far as they know, no commercial antivirus products are able to detect it, they say."
[story.news.yahoo.com...]
Because they have not identified which Trojan horse the suspect allegedly created, antivirus companies cannot say definitively whether or not they are able to detect it, says Graham Cluley, senior technology consultant for Sophos.
Won't a form of "Habeas Corpus" apply here?
They caught him spying but cannot identify the tool employed? That's like a person being shot, minus the gun, then arresting a passer-by who came too close.
I think he might get off due to this technicality.
That's becuase they don't know yet what the program is. The cops have it. If you're in Spain and you have a video of someone in Australia and the program that can do that, it's different from the scenario you posted.
In this case they found the gun in your apartment, along with the info on the victim and surveillance tapes. By checking his computer and ISP records they can find out anything.