Cyber surveillance
(BRUSSELS) – Police and judicial authorities would gain easier and faster access to e-evidence such as e-mails or documents under new EU proposals to help them investigate, prosecute and convict criminals and terrorists.
The new rules would allow law enforcement in EU Member States to better track down leads online and across borders, while providing sufficient safeguards for the rights and freedoms of all concerned.
“We cannot allow criminals and terrorists to exploit modern and electronic communication technologies to hide their criminal actions and evade justice,” said EC first vice-president Frans Timmermans: “There must be no hiding place for criminals and terrorists in Europe, online or offline. Today’s proposals will put in place unprecedented tools enabling the competent authorities not only to gather electronic evidence quickly, efficiently across borders but also ensuring robust safeguards for the rights and freedoms of all affected.”
Currently more than half of all criminal investigations include a cross-border request to obtain electronic evidence held by service providers based in another Member State or outside the EU. To obtain such data, judicial cooperation and mutual legal assistance is needed, however, the process is much too slow and cumbersome at present.
The Commission says almost two thirds of crimes where electronic evidence is held in another country cannot be properly investigated or prosecuted, mainly due to the time it takes to gather such evidence or due to fragmentation of the legal framework. By making the process of obtaining electronic evidence more quickly and efficiently, it says the proposals will help close this loophole.
The proposals will:
- create a European Production Order: This will allow a judicial authority in one Member State to request electronic evidence (such as emails, text or messages in apps) directly from a service provider offering services in the Union and established or represented in another Member State, regardless of the location of data, which will be obliged to respond within 10 days, and within 6 hours in cases of emergency (as compared to 120 days for the existing European Investigation Order or 10 months for a Mutual Legal Assistance procedure);
- prevent data being from being deleted with a European Preservation Order: This will allow a judicial authority in one Member State to oblige a service provider offering services in the Union and established or represented in another Member State to preserve specific data to enable the authority to request this information later via mutual legal assistance, a European Investigation Order or a European Production Order;
- include strong safeguards and remedies: Both orders can only be issued in the framework of criminal proceedings and all criminal law procedural safeguards apply. The new rules guarantee strong protection of fundamental rights, such as the involvement of judicial authorities and additional requirements for obtaining certain data categories. It also includes safeguards for the right of personal data protection. The service providers and persons whose data is being sought will benefit from various safeguards, such as a possibility for the service provider to request review if the, for instance, Order manifestly violates the Charter of Fundamental Rights of the European Union;
- oblige service providers to designate a legal representative in the Union: to ensure that all service providers that offer services in the European Union are subject to the same obligations, even if their headquarters are in a third country, they are required to appoint a legal representative in the Union for the receipt of, compliance with and enforcement of decisions and orders issued by competent authorities of the member States for the purposes of gathering evidence in criminal proceedings;
- provide legal certainty for businesses and service providers:whereas 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 ordering the provision of electronic evidence will improve legal certainty for authorities and for service providers.
Electronic evidence regulation
Legal representatives directive
Frequently Asked Questions: New EU rules to obtain electronic evidence
