On 8 June, the European Commission presented to EU Justice Ministers a set of practical and legislative options to improve cross-border access to e-evidence. Ministers endorsed the implementation of practical options and asked the Commission to come forward with concrete legislative proposals in the near future.
"Our current investigation tools are not fit for the way the digital world works" said Věra Jourová, Commissioner for Justice, Consumers and Gender Equality "These tools still work within the limits of the principle of territoriality, which is at odds with the cross-border nature of e-services and data flows. As a result investigators' work is slowed down when dealing with cybercrime, terrorism and other forms of criminal activities, even where such crimes are not cross-border in nature. This is why we launched an expert consultation in 2016."
"Our law enforcement authorities need the right tools to fight serious forms of crime, including terrorism and cybercrime", said Dimitris Avramopoulos, Commissioner for Migration, Home Affairs and Citizenship "Cross-border access to evidence is a precondition for successfully completing almost any cybercrime or terrorism investigation."
"The Commission's e-evidence expert process involved all relevant stakeholders and provides a basis for balanced measures", said Sir Julian King, Commissioner for Security Union. "We welcome the Council's support for ambitious measures to improve cross-border access to electronic evidence. On that basis the Commission will come forward with concrete proposals to improve criminal justice in cyberspace".
Within the EU.
To enhance judicial cooperation in the framework of the European Investigation Order (EIO) we are developing:
an electronic user-friendly version of the EIO form for requests, including guidance that allows judges and prosecutors to fill it in more easily. It will be made available on the European Justice Network website.
a platform with a secure communication channel for digital exchanges of EIOs for electronic evidence between EU judicial authorities.
Within the U.S.
To improve judicial cooperation between Member States and the U.S., the Commission is:
Organising regular meetings with U.S. Department of Justice to keep improving the treatment of mutual legal assistance requests for electronic evidence
Promoting the exchange of best practice and training for EU practitioners on relevant U.S. law and procedures.
Exploring the feasibility of an online platform to provide information on applicable rules and procedures to facilitate the transmission and the creation of requests.
Voluntary cooperation between national authorities and service providers has become the main channel to obtain non-content data, such as information on the subscriber's account. While U.S.-based service providers are allowed to provide non-content data to foreign law enforcement, this is currently done in the EU only for service providers based in Ireland.
Measures to improve the situation:
The practical measures above will significantly help to improve the current situation. However, they cannot solve all issues identified, in particular those linked to the fragmented legal frameworks in Member States. Experts suggested legislative measures allowing:
The Council will discuss the practical and legislative measures presented by the Commission. The Commission suggests pursuing all practical measures and seeks the views of the Council regarding the necessity and feasibility of legislative measures. If legislative options are supported by the Council, the Commission will launch a public consultation.