Crime leaves digital traces that can serve as evidence in court proceedings; often it will be the only lead law enforcement authorities and prosecutors can collect. Therefore, effective mechanisms to obtain digital evidence are of the essence. However, present-day solutions too often prove unsatisfactory, bringing investigations to a halt.
In its April 2015 Communication on a European Agenda on Security, the Commission committed to addressing these challenges for investigations into cyber-enabled crimes. This was confirmed in the 20 April 2016 Communication on delivering on the European Agenda on Security to fight against terrorism and pave the way towards an effective and genuine Security Union. In the Communication, the Commission undertook to propose solutions by summer 2017, including legislation if required, to address the problems of obtaining digital evidence in relation to criminal investigations.
In its Conclusions on improving criminal justice in cyberspace, adopted on 9 June 2016, the Council supported the Commission´s commitment and called on the Commission to take concrete actions based on a common EU approach to improve cooperation with service providers, make mutual legal assistance more efficient and to propose solutions to the problems of determining and enforcing jurisdiction in cyberspace.
The Council requested the Commission to report on intermediate results by December 2016 and to present deliverables by June 2017.
The Commission has launched an expert consultation process in July to explore possible solutions and work towards a common European Union position, through the involvement of relevant stakeholders, including private sector, practitioners from the Member States and civil society organisations. This process has started with bilateral meetings and small groups and is now expanding progressively as options are being developed and tested. A first progress report was provided at the 8 December JHA Council.
A non-paper on the results of the expert consultation process was presented at the 8 June 2017 JHA Council meeting. This document is prepared by the Commission services and cannot be considered as stating an official position of the Commission.
In addition a more detailed technical document was prepared. This document has not been adopted or endorsed by the European Commission. Any views expressed are the preliminary views of the Commission services and may not in any circumstances be regarded as stating an official position of the Commission.
At the Justice and Home Affairs Council on 8 June 2017, Ministers asked the Commission to proceed with the implementation of the set of practical measures and to come forward with concrete legislative proposals. Commissioner Jourová announced her intention to put forward legislative measures for adoption by the Commission in early 2018.
On that basis the Commission published an Inception Impact Assessment on 4 August 2017. A public consultation was launched on the same day to collect views of relevant stakeholders. A questionnaire is available for 12 weeks, until 27 October 2017 end of business.
The EU has also funded a number of projects on these and related issues, including the recently concluded EVIDENCE project. This project was dedicated to the application of new technologies in the collection, use and transmission of electronic evidence.