More than half of all criminal investigations today include a cross-border request to access electronic evidence such as texts, e-mails or messaging apps. That is why the Commission is proposing new rules which will make it easier and faster for police and judicial authorities to access the electronic evidence they need in investigations to catch and convict criminals and terrorists.
The European Commission proposed on 5 February 2019 to start international negotiations on cross-border access to electronic evidence, necessary to track down dangerous criminals and terrorists.
Following up on the European Council Conclusions from October 2018, the Commission is presenting two sets of negotiating directives , one for negotiations with the United States and one for the Second Additional Protocol to the Council of Europe “Budapest” Convention on Cybercrime. Both negotiating directives, which now need to be approved by the Council, include strong privacy, data protection and privacy safeguards.
Internal EU rules: Proposal on e-evidence
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, the Commission proposed on 17 April 2018 new rules in the form of a Regulation and a Directive, which will:
- create a European Production Order: this will allow a judicial authority in one Member State to obtain electronic evidence (such as emails, text or messages in apps, as well as information to identify a perpetrator as a first step) directly from a service provider or its legal representative in another Member State, which will be obliged to respond within 10 days, and within 6 hours in cases of emergency (compared to up to 120 days for the existing European Investigation Order or an average of 10 months for a Mutual Legal Assistance procedure);
- create a European Preservation Order: this will allow a judicial authority in one Member State to request that a service provider or its legal representative in another Member State preserves specific data in view of a subsequent request to produce this data via mutual legal assistance, a European Investigation Order or a European Production Order;
- include strong safeguards: the new rules guarantee strong protection of fundamental rights, including safeguards for the right to protection of personal data. The service providers and persons whose data is being sought will benefit from various safeguards and be entitled to legal remedies;
- oblige service providers to designate a legal representative in the Union: to ensure that all providers that offer services in the Union are subject to the same obligations, even if their headquarters are in a third country, they are required to designate a legal representative in the Union for the receipt of, compliance with and enforcement of decisions and orders.
- provide legal certainty for businesses and service providers: whereas today law enforcement authorities often depend on the good will of service providers to hand them the evidence they need, in the future, applying the same rules for access to all service providers will improve legal certainty and clarity.
The new rules are the outcome of a two-year process resulting from strong calls for action by Member States and industry. It included a thorough impact assessment analysing the problem, the options and the impacts of the various options, supported by extensive stakeholder consultations including a public consultation