The digital revolution is redefining every aspect of society, and crime is no exception. More and more criminals use technology to plan and commit offences. As a result, authorities increasingly depend on electronic evidence to locate and convict offenders.
However, obtaining access to electronic evidence can be a long and complicated matter, especially if the data is stored abroad. That is why, following calls from the European Council and the Council, the Commission proposed new rules in April 2018 to make it easier and faster for authorities to gain access to electronic evidence .
On this page you can find out more about:
- electronic evidence
- The problem with cross-border access
- the new rules proposed by the Commission
What is electronic evidence?
Electronic evidence, or “e-evidence”, refers to the digital data used to investigate and prosecute criminal offences.
Among other things, it includes:
- emails
- text messages or content from messaging apps
- audiovisual content
- information about a user’s online account
Such data can be used to identify a person or obtain more information about their activities.
In the digital age, criminals increasingly use technological services and tools to plan and commit offences. As a result, electronic evidence is becoming essential to fighting crime: currently, 85% of criminal investigations involve digital data.
The problem with cross-border access
Obtaining access to electronic evidence is not always a straightforward matter for authorities because it is often kept in another country . Online service providers store users’ data on one or more servers that may be located in several countries, both inside and outside the EU.
This makes it much harder for judicial authorities to gather electronic evidence, as they have to go through long and complicated procedures to obtain access to it.
A cross-border request to obtain electronic evidence is made in more than 50% of all criminal investigations.
How the new rules will improve access to electronic evidence
The main objective of the new rules proposed by the Commission is to speed up access to electronic evidence kept in another member state.
Under the Commission’s initial proposal, the new rules would allow the judicial authorities of one EU country to directly request access to electronic evidence from a service provider in another EU country.
This would speed up the request for access, as it would no longer be necessary to go through the authorities of the other member state.
The proposed rules consist of two legislative proposals:
- A regulation on European production and preservation orders for electronic evidence in criminal matters.
- A directive laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings.
The new rules in detail
The regulation on production and preservation orders for electronic evidence will allow authorities to access digital evidence stored by service providers regardless of where it is kept.
- The production order will allow the judicial authority of one member state to directly request access to electronic evidence from a service provider in another member state. The service provider will have to respond within 10 days, or within 6 hours in the event of an emergency.
- The preservation order will prevent a service provider from deleting the electronic evidence while the production order request is still being processed.
The rules will be based on the existing principles of mutual recognition between member states. They will only apply to stored data, as real-time interception of telecommunications is not covered by the proposed rules.
The directive on legal representatives will oblige all service providers to designate a legal representative in the EU. The latter will be responsible for receiving and complying with decisions and orders. The aim is to ensure that all service providers operating in the EU have the same obligations with regard to electronic evidence.
2019
6-14 June
The Council instructs the Commission to negotiate international agreements on electronic evidence
The Council adopted two mandates authorising the Commission to:
- negotiate on behalf of the EU an agreement with the US to facilitate access to electronic evidence for the purpose of judicial cooperation in criminal matters
- take part in the negotiations in the Council of Europe on a second additional protocol to the Cybercrime Convention
Both would aim to facilitate access to electronic evidence, such as emails or documents located in the cloud, to be used in criminal proceedings. If concluded at a later stage, they will complement the EU framework on access to electronic evidence currently under discussion by the EU institutions, on which the Council adopted its position in December 2018 and March 2019.
8 March
The Council agrees its position on the rules for appointing legal representatives for the gathering of evidence
The Council reached its position on the directive on the appointment of legal representatives for the gathering of evidence in criminal proceedings. This directive will be an essential tool for the application of the future regulation on European production and preservation orders for electronic evidence in criminal matters, on which the Council adopted its position last December. It lays down the rules for the appointment of service providers’ legal representatives, whose role is to receive and respond to such orders.
2018
7 December
Regulation on cross-border access to electronic evidence: the Council agrees its position
The Council agreed its position on the regulation on European production and preservation orders for electronic evidence in criminal matters. It is now ready to start negotiations with the European Parliament with the aim of reaching an agreement before the end of the parliamentary term.
11 October
Justice ministers discuss the regulation on European production and preservation orders
Justice ministers discussed the regulation on European production and preservation orders. Many member states were willing to find a compromise and discuss the inclusion of some kind of notification procedure. Work will continue at expert level to try to better define the possible main features of such a “notification”.
4 June
UNITED STATES CLOUD Act: ministers call for negotiations with the authorities
The Justice and Home Affairs ministers discussed the e-evidence package. With regard to the adoption of the United States CLOUD Act, the Council supported a common approach at EU level. It encouraged the Commission to continue its contacts with the US authorities and to urgently present a negotiating mandate.
17 April
The Commission presents legislative proposals on electronic evidence
The European Commission presented a package of legislative proposals on electronic evidence:
- A regulation on European production and preservation orders for electronic evidence in criminal matters.
- A directive laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings.
2017
20 November
Council conclusions call for a new legislative proposal
The Council adopted conclusions on the Commission’s communication on building strong cybersecurity for the EU. In its conclusions, the Council urged the Commission to present a legislative proposal in early 2018 to improve cross-border access to electronic evidence. It also asked the Commission to present a progress report by December 2017 on the implementation of practical measures to improve cross-border access to electronic evidence.
23 June
EU leaders: access to electronic evidence is key to fighting terrorism
In its June 2017 conclusions, the European Council considered that effective access to electronic evidence was essential to combating serious crime and terrorism.
2016
9 June
The Council adopts conclusions on improving criminal justice in cyberspace
The Council adopted conclusions on improving criminal justice in cyberspace. In its conclusions, the Council highlighted the ever-growing importance of electronic evidence in criminal proceedings across all types of crime, and in particular for terrorism. The conclusions set out concrete measures for future follow-up and action.
24 March
Justice and Home Affairs ministers call for better access to electronic evidence after the Brussels attack
The Justice and Home Affairs ministers underlined the need to find ways to obtain digital evidence more quickly and effectively, in a joint statement issued two days after the terrorist attacks in Brussels.
