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Migration and Home Affairs

e-evidence

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.

Proposal for new rules

To make it easier and faster for law enforcement and judicial authorities to obtain the electronic evidence needed for investigation and potential prosecution of criminals and terrorists, the Commission proposed new rules which should:

  • Guarantee strong protection of fundamental rights
    The rules include 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 EU
    To ensure that all providers that offer services in the EU 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
    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 also foresee the creation of a European Production Order and Preservation Order.

  • European Production Order
    The European Production Order will allow a judicial authority in one EU country 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 EU country.
    The latter will be obliged to respond within 10 days, and within 6 hours in cases of emergency (compared to up to 120 days for the old European Investigation Order or an average of 10 months for a Mutual Legal Assistance procedure).
  • European Preservation Order
    The European Preservation Order will allow a judicial authority in one EU country to request that a service provider, or its legal representative, in another EU country 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.

Policy timeline

The rules are the outcome of a 2-year process resulting from strong calls for action by Member States and industry. It included a thorough impact assessment (see here for its executive summary) analysing the problem, the options and the impacts of the various options, supported by extensive stakeholder consultations.

The key milestones of the process were:

  • April 2018
    The Commission adopts proposals for Regulation and Directive facilitating cross-border access to electronic evidence for criminal investigations.
  • August 2017
    A public consultation is launched to collect views of relevant stakeholders on improving cross-border access to electronic evidence in criminal matters. The results of the public consultation are incorporated in the impact assessment, which is used as the basis to develop the legislative proposals.
  • July 2017
    The Commission launches an expert consultation process to explore possible solutions and work towards a common EU position. Bi-lateral meetings involved relevant stakeholders, including the private sector, practitioners from EU countries and civil society organisations resulting in a first progress report.
  • June 2017
    At the Justice and Home Affairs Council, Ministers ask the Commission to proceed with the implementation of the set of practical measures and to come forward with concrete legislative proposals.
  • June 2016
    The Council supports the Commission’s commitment and calls 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.
  • April 2016
    To pave the way towards an effective and genuine Security Union, the Commission issues a Communication on delivering on the European Agenda on Security, including legislation to address the problems of obtaining digital evidence in relation to criminal investigations.
  • April 2015
    In the European Agenda on Security the Commission commits to addressing the challenges for investigations into cyber-enabled crimes.

In addition to the legislative proposals, the Commission continues to work on the implementation of practical measures, such as supporting cooperation with service providers and US authorities, in particular through capacity building, as well as the establishment of a secure platform for the swift exchange of requests within the EU.

The EU has also funded a number of projects on these and related issues:

  • EVIDENCE project - dedicated to the application of new technologies in the collection, use and transmission of electronic evidence.
  • SIRIUS - an innovative project that includes an interactive knowledge-sharing platform accessible to judicial and law enforcement authorities.

Documents

Related links

20170522_non-paper_electronic_evidence_en.pdf
English
(243.88 KB - PDF)
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20170522_technical_document_electronic_evidence_en.pdf
English
(981.57 KB - PDF)
Download