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Migration and Home Affairs

How can we improve cross-border access to e-evidence?

Sunday, 11 June, 2017

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".

Main problems to access e-evidence in another Member State:

  • On the internet the concepts of territoriality and sovereignty are challenged. The rise of cloud computing entails that data is stored in data centres, often located abroad. Sometimes, it may even be impossible to locate where data is stored or from where a cyber-attack was launched.
  • In cross-border cases, law enforcement and judicial authorities tend to cooperate using mutual legal assistance procedures or the European Investigation Order.  However, these traditional means of judicial cooperation are often deemed too slow and cumbersome for accessing e-evidence, which can be transferred or deleted at the click of a mouse.
  • In parallel, voluntary cooperation between law enforcement and US service providers has developed as an alternative path to access e-evidence. This form of cooperation is generally faster than judicial cooperation, but service providers have different approaches regarding the handling of requests for disclosing electronic evidence, and the process lacks transparency and accountability.
  • Finally a number of Member States and third countries are working on national solutions that could lead to conflicting obligations for service providers. The current system is patchy and generates legal uncertainty for all parties concerned: for service providers, law enforcement and judicial authorities and also for EU citizens who wonder who can access their data and whether their fundamental rights are sufficiently protected.

Ways forward

Practical measures to improve cooperation among judicial authorities

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.

Practical measures to improve cooperation with service providers

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:

  • Establishing single points of contact within Member States to ensure the quality of outgoing requests and build relationships of confidence with providers
  • Streamlining service providers’ policies to release the requested data
  • Developing training programmes and exchange of best practice for EU law enforcement and judicial authorities for cooperation with U.S.-based providers.
  • Establishing an online information and support portal at EU level to provide support to online investigations

Legislative measures to improve cross-border access to electronic evidence

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 issuing of  production requests/orders to service providers in another Member State
    One of the possible solutions is an EU legal framework enabling authorities to request ("production request") and authorising service providers to respond, or enabling authorities to compel ("production order") a service provider to disclose information about a user, regardless of the location of its headquarters.
  • The direct access to e-evidence
    Sometimes finding a service provider to address with a request or order is difficult or impossible and there may be a risk of losing much valuable leads. In such cases, some Member States already make it possible to access the data directly from a device of a suspect or through a computer system.
    Those investigation techniques have to be considered with caution in view of their potential invasiveness and the risk for fundamental rights and privacy. The conditions and minimum safeguards for direct access in potential cross-border situations could also be set up at EU level.
  • Legislative measures beyond the European Union
    As the internet is borderless these options for legislative measures could be complemented by agreements with key partner countries or through expanding multilateral treaties, in particular the Council of Europe Budapest Convention on Cybercrime.

Next steps

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.

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