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 in 2018 on which the Council of the European Union and the European Parliament have recently reached a political agreement. The legal texts are currently going through a process of translation and linguistic checks, after which they are expected to be formally adopted by both co-legislators. The publication of the final texts is expected to take place in summer 2023.
The proposed rules will:
- 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 an establishment or 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 introduce 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. In some instances, the judicial authority is required to involve an authority in the Member State where the service provider or its legal representative is located, through a notification.
The latter will be obliged to respond within 10 days, and within 8 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.
For more information on the adopted proposals, please see the recent presentation included below in the “Documents” section.
The proposals were the outcome of a two-year process resulting from strong calls for action by Member States and industry. It included a thorough impact assessment (see the executive summary) analysing the problem, the options and the impacts of the various options, supported by extensive stakeholder consultations. Negotiations between the co-legislators took an additional four years to complete and concluded in late 2022.
The key milestones of the process to date are:
- January 2023Endorsement of the political agreement
Endorsement of the political agreement by the EU Member States’ ambassadors and the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs.
- November 2022Political Agreement between the Council of the European Union and the European Parliament on the Regulation and the Directive
- August 2017Public consultation
- July 2017Expert consultation process
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 2017Implementation of the set of practical measures
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 2016The Council supports the Commission’s commitment
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 2016Communication on delivering on the European Agenda on Security
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 2015European Agenda on Security
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. In 2022, the Commission has also successfully concluded negotiations on behalf of the EU for a Second Additional Protocol to the Budapest Convention on Cybercrime, which was opened for signature on 12-13 May 2022, creating a solid basis for international cooperation. After consent of the European Parliament, the Council of the European Union adopted decisions to authorise Member States to sign and ratify the Second Additional Protocol
The EU has also funded a number of projects on these and related issues:
- Presentation - overview of e-evidence
- Proposal for a regulation on European Production and Preservation Orders for electronic evidence in criminal matters
- Proposal for a directive down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings
- Summary of Member States replies to the questionnaire on e-evidence
- Flash report on meeting about e-evidence and encryption in criminal investigations