e-Evidence: Commission welcomes political agreement to strengthen cross-border access for criminal investigations

This article is brought to you in association with the European Commission.

The European Commission welcomes the provisional political agreement reached today by the European Parliament and the Council on the new rules for sharing of e-evidence across the EU. This agreement will lead to  the formal adoption of a Directive and a Regulation to govern these provisions, following the Commission’s proposal. Currently, the Member States’ authorities must rely on lengthy judicial cooperation procedures to obtain electronic evidence, with the related risks of the sought data being moved or deleted, or on procedures of voluntary cooperation with service providers involving a lack of  reliability, transparency, accountability and legal certainty. The new rules will provide national authorities with a reliable channel to obtain e-evidence, while establishing strong safeguards to ensure a high level of protection of the rights of the persons affected.

Modern legislation to ensure reliable, transparent, and swift exchange of e-Evidence with a high level of protection

The Regulation on European Production and Preservation Orders provides a solution for the volatile nature of electronic evidence and its international dimension. It seeks to adapt cooperation mechanisms to the digital age, giving the judiciary and law enforcement tools to address the way criminals communicate today, and to counter modern forms of criminality:

• A European Production Order will be created to allow a judicial authority in one Member State to request electronic evidence through a decentralized IT system, directly from a service provider in another Member State, which will be obliged to respond within ten days, or eight hours in cases of emergency.
• A European Preservation Order will prevent data from being deleted, allowing judicial authorities in one Member State to oblige a service provider in another Member State to preserve specific data, and to request it at a later time. Both orders can only be issued in the framework of criminal proceedings and to localise convicts that are evading justice.
• The new rules include strong safeguards and remedies to guarantee the protection of fundamental rights and of personal information, such as imposing additional requirements to obtain certain categories of sensitive data. In cases where a person does not reside in the issuing State or the offense has not been committed there, Member States must notify the national authority where the service provider is located when they are seeking to obtain traffic and content data. The notified authority can invoke several grounds to refuse the order, such as the protection of fundamental rights or of immunities and privileges.
• Increased legal certainty for businesses and service providers. Law enforcement authorities often depend on service providers’ willingness to disclose the evidence they need on a voluntary basis, which creates uncertainty and procedures which could differ significantly among companies. The Regulation provides a clear legal framework setting out rights and obligations of service providers and imposes a sanction of up to 2% of total worldwide turnover for failure to comply with European Preservation and Production Orders.

The Directive on the appointment of legal representatives for the gathering of electronic evidence harmonises rules on appointment of legal representatives or designated establishments by:

• Mandating all services providers offering services in the Union to designate a legal representative or a designated establishment to receive, comply with, and enforce requests to gather electronic evidence;
• Allowing its provisions to be used for several instruments, in particular for European Production Orders, European Investigation Orders, the Convention on Mutual Legal Assistance, and domestic orders.

Next steps

The European Parliament and the Council will need to formally adopt today’s political agreement.

Once published in the Official Journal, the Regulation will enter into force 20 days after publication in the Official Journal of the European Union and shall enter into application three years after that. The Directive will enter into force 20 days after publication and Member States will then need to transpose the new elements of the Directive into national law within two and a half years.

Background

In the context of a tragic wave of terrorist attacks in Europe, EU Ministers for Justice and Home Affairs  called for concrete action based on a common EU approach to secure and obtain digital evidence more efficiently and effectively. In the 2015 European Agenda on Security, the Commission committed to reviewing obstacles to criminal investigations. The European Parliament similarly highlighted the challenges that the currently fragmented legal framework could create for service providers seeking to comply with law enforcement requests and called for a European legal framework, including safeguards for the rights and freedoms of all concerned.

Many Member States had adopted measures at the national level, resulting in widely varied approaches across the Union. Measures ranged from expanded enforcement jurisdiction to the obligation to designate a legal representative for service providers in the territory of the relevant Member State. Member States also applied a number of different connecting factors to assert jurisdiction over a service provider. In addition, there were disparate cooperation mechanisms and informal agreements between the authorities of some Member States and service providers.

Non-EU countries have also been developing their own approaches to address the problems faced by authorities in their criminal investigations. New rules have been developed in this area by means of a Second Additional Protocol to the Council of Europe Budapest Convention on Cybercrime.

In 2018, the Commission presented a proposal to make it easier and faster for law enforcement and judicial authorities to obtain the electronic evidence they need to investigate and eventually prosecute criminals and terrorists.