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.
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.
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 2018Regulation and Directive facilitating cross-border access to electronic evidence for criminal investigations
The Commission adopts proposals forRegulation and Directive facilitating cross-border access to electronic evidence for criminal investigations.
- 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.
The EU has also funded a number of projects on these and related issues:
- 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