European Data Protection Supervisor (EDPS): Opinion on a new EU legal framework for gathering electronic evidence (e-evidence) in cross-border cases.

In a world transformed by new technologies, it is vital to ensure that law enforcement and judicial authorities have access to the necessary information and tools that are effective in the fight against terrorism and other crimes. However, any initiative in this field must fully respect the EU Charter of Fundamental Rights and the EU data protection framework, the Assistant European Data Protection Supervisor (EDPS) said today, as he published his Opinion on a new EU legal framework for gathering electronic evidence (e-evidence) in cross-border cases.

Wojciech Wiewiórowski, Assistant EDPS, said: “New technologies have opened up new avenues for cross-border criminal activity across national borders. Evidence of criminal activity is now, in many cases, electronic, and not always easy for the competent authorities to access, due to limitations based on the traditional concepts of geographical jurisdictions. Ensuring EU authorities have effective and efficient means to access information stored in another State is essential to the security of the European Union. However, it cannot come at the expense of the rights and freedoms we enjoy as EU citizens. A balance must be found which provides for greater EU security without compromising fundamental rights and data protection principles.”

Law enforcement authorities are increasingly faced with cross-border situations, where the information they need is stored electronically in another State. The Commission’s Proposals on e-evidence, published in April 2018, would introduce two new types of binding orders for criminal proceedings, allowing for access to data stored by service providers that may serve as evidence (Production Orders), or for the preservation of this data by service providers in anticipation of subsequent requests for access (Preservation Orders). It would streamline procedures within the EU, facilitating and accelerating access to data cross-border.

Today’s EDPS Opinion on e-evidence aims to provide the EU legislator with new input on the 2018 Proposals. In particular, it focuses on the need to ensure that all necessary safeguards are in place. This includes providing for the increased involvement of the judicial authorities in the enforcing Member State in the process of gathering cross-border electronic evidence.

In addition, the EDPS calls for clearer definitions of data categories in the proposed Regulation. This includes ensuring that they are consistent with existing definitions of data categories in EU law. The balance between the types of offences for which Production Orders could be issued and the categories of data concerned must also be reassessed, taking into account case law issued by of the Court of Justice of the EU.

Since their publication, the Council has adopted general approaches on the Proposals and the European Parliament has issued several working documents. Related developments have also taken place at international level, including the launch of negotiations with the United States on cross-border access to e-evidence, as well as work in the Council of Europe on a Second Additional Protocol to the Cybercrime Convention. The EDPS has consistently supported the objectives of streamlining procedures and speeding up access to e-evidence, providing constructive advice to put in place sustainable arrangements with non-EU countries in his Opinions on the negotiating mandate for an EU-US agreement on cross-border access to e-evidence and on the Budapest Cybercrime Convention.