23 July, 2018

ETNO position paper on improving cross-border access to electronic evidence in criminal matters

Law Enforcement and Judicial Authorities increasingly rely on the analysis of data generated by the widespread use of electronic communications services and devices. The ability of individuals and organisations to easily store and share data across borders, through major service providers that often operate from outside the European Union, means that even an ordinary crime with a clear national or local dimension can easily acquire a transnational relevance.

While ETNO acknowledges the importance for Law Enforcement and Judicial Authorities to have the right tools to investigate and prosecute serious crime, legal certainty is crucial especially when such tools may affect individuals’ fundamental rights. Therefore, ETNO calls for more legal certainty and clear and feasible provisions in the proposed Regulation on cross-border access to e-Evidence that reduce the burden on service providers.

ETNO fears that the proposal, as initially presented by the Commission, may decrease legal certainty for service providers compared to today’s situation. ETNO calls on EU co-legislators to consider carefully some necessary changes in order to improve the e-Evidence Regulation:

  • More accountability for Member States: it should be up to the Judicial Authorities, and not to service providers, to ensure that requests for e-evidence are compliant with the Charter of Fundamental Rights of the EU and with the local law of the issuing authority.
  • Increase legal certainty: include a detailed list of criminal offences in the scope of the Regulation; require judicial oversight for all types of data. Include harmonised provisions with respect to requests for information related to specific targeted professions/groups (lawyers, journalists, etc.), where such provisions are provided for in national law.
  • Improve the feasibility of provisions, addressing concrete issues related to: conflicting laws in the EU and compatibility with international law, costs (re-imbursement of both OPEX and CAPEX), short delays, delivery authenticity, and process to challenge orders that are not conforming. Establish a specialised Court and a secure transmission channel for the handling of requests.

Full version available here

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