Nowadays, protecting privacy and online data is undoubtedly a top-priority for the European Union and the single digital market, but if there is law enforcement on one side, there should also be corresponding rules on the other side providing for the sourcing and use of data as evidence.
Using data for judicial purposes in criminal proceedings is still a contentious issue within the European Union, since discussions and debates about the topic have lasted 2 years, ending in the drafting of a regulation by the European Commission permitting electronic evidence in criminal matters.
But why is it so urgent and important to have precise rules in this field?
Imagine some thieves decide to rob a house and they had previously studied the perimeter of the house to figure out how they could get in with least trouble. They stored pictures of the house in the cloud and they sent each other e-mails to agree the date and time the robbery will take place. How can the police obtain these data?
This clearly shows that criminal organisations and activities are changing, adapting their methods to the current digital era, unfortunately slowing the penal process related to the crime. Investigators, police officers and judicial authorities can no longer find sufficient physical proof of committed crimes, and have to rely upon digital evidence.
Indeed, in several criminal cases, national authorities require access to data which could be used as evidence for crimes and that can be stored by service providers in another Member State or even a third country. Unluckily, in this area there is not yet cooperation among Member States, and this inevitably slows down proceedings and doesn’t guarantee justice in the short term. This fragmentation generates legal uncertainty, since each Member State has different national regulations and processes.
E-evidence (electronic evidence of a committed crime) will be admissible in court and the European Union is trying to put in place rules to speed up the process. The proposal was presented on 17th of April 2018, under the Austrian presidency of the Council of European Union. This is going to create, if approved, a European Production Order. This order consists of a judicial authority generated in one Member State to obtain e-evidence from a service provider in another Member State. The regulation shortens the length of the process, to a maximum of 10 days or even 6 hours in cases of emergency. The order doesn’t violate in theory any human rights, since it should be issued or validated by a judicial authority after an evaluation of the proportionality and necessity in each case. Moreover, in the regulation there is an obligation to send notifications to the implicated party . Importantly, the proposal refers only to stored data and not to real time interception.
However, there are many concerns related to different aspects of this regulation. The proposal could affect fundamental rights and fundamental freedoms in different ways:
- The party whose data is requested can interpret this as violated personal data, right to respect private or family life, freedom of expression, etc.;
- European citizens might feel that their right to liberty and security are not protected anymore;
- The regulation provides that the European Production Order “may only be issued if a similar measure is available for the same criminal offence in a comparable domestic situation in the issuing State” ;
The question comes naturally then: what if in the enforcing State the criminal act is treated with a different seriousness? Or is not even considered a criminal act at all?
What happens for example if a French woman has an abortion in Poland (where it is illegal), then goes back to her country (where abortion is permitted) and Poland requests e-evidence of the crime to Google, for example, which has the headquarter in Ireland?
These are the main points upon which the European Union is still discussing, and for which there is not yet a solution; whose laws should be prioritised ? The law of the country where the crime was committed or the laws of the country where the (vital) evidence is being held ?
Undoubtedly, the Commission is also working on the implementation of other practical measures, such as supporting cooperation with service providers in USA, through capacity building, as well as the establishment of a secure platform for the exchanges of requests within the EU.
It should be recognised the process of e-evidence exchange in itself is difficult because Member States don’t want to lose they digital sovereignty.For sure, the hope for the future is to speed up judicial processes and to render them more effective at European Union level, obviously putting in the equation the necessary checks and balances.
For further information:
https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1524129181403&uri=COM:2018:225:FIN
https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1524129181403&uri=COM:2018:226:FIN
Related Posts
Nowadays, protecting privacy and online data is undoubtedly a top-priority for the European Union and the single digital market, but if there is law enforcement on one side, there should also be corresponding rules on the other side providing for the sourcing and use of data as evidence.
Using data for judicial purposes in criminal proceedings is still a contentious issue within the European Union, since discussions and debates about the topic have lasted 2 years, ending in the drafting of a regulation by the European Commission permitting electronic evidence in criminal matters.
But why is it so urgent and important to have precise rules in this field?
Imagine some thieves decide to rob a house and they had previously studied the perimeter of the house to figure out how they could get in with least trouble. They stored pictures of the house in the cloud and they sent each other e-mails to agree the date and time the robbery will take place. How can the police obtain these data?
This clearly shows that criminal organisations and activities are changing, adapting their methods to the current digital era, unfortunately slowing the penal process related to the crime. Investigators, police officers and judicial authorities can no longer find sufficient physical proof of committed crimes, and have to rely upon digital evidence.
Indeed, in several criminal cases, national authorities require access to data which could be used as evidence for crimes and that can be stored by service providers in another Member State or even a third country. Unluckily, in this area there is not yet cooperation among Member States, and this inevitably slows down proceedings and doesn’t guarantee justice in the short term. This fragmentation generates legal uncertainty, since each Member State has different national regulations and processes.
E-evidence (electronic evidence of a committed crime) will be admissible in court and the European Union is trying to put in place rules to speed up the process. The proposal was presented on 17th of April 2018, under the Austrian presidency of the Council of European Union. This is going to create, if approved, a European Production Order. This order consists of a judicial authority generated in one Member State to obtain e-evidence from a service provider in another Member State. The regulation shortens the length of the process, to a maximum of 10 days or even 6 hours in cases of emergency. The order doesn’t violate in theory any human rights, since it should be issued or validated by a judicial authority after an evaluation of the proportionality and necessity in each case. Moreover, in the regulation there is an obligation to send notifications to the implicated party . Importantly, the proposal refers only to stored data and not to real time interception.
However, there are many concerns related to different aspects of this regulation. The proposal could affect fundamental rights and fundamental freedoms in different ways:
- The party whose data is requested can interpret this as violated personal data, right to respect private or family life, freedom of expression, etc.;
- European citizens might feel that their right to liberty and security are not protected anymore;
- The regulation provides that the European Production Order “may only be issued if a similar measure is available for the same criminal offence in a comparable domestic situation in the issuing State” ;
The question comes naturally then: what if in the enforcing State the criminal act is treated with a different seriousness? Or is not even considered a criminal act at all?
What happens for example if a French woman has an abortion in Poland (where it is illegal), then goes back to her country (where abortion is permitted) and Poland requests e-evidence of the crime to Google, for example, which has the headquarter in Ireland?
These are the main points upon which the European Union is still discussing, and for which there is not yet a solution; whose laws should be prioritised ? The law of the country where the crime was committed or the laws of the country where the (vital) evidence is being held ?
Undoubtedly, the Commission is also working on the implementation of other practical measures, such as supporting cooperation with service providers in USA, through capacity building, as well as the establishment of a secure platform for the exchanges of requests within the EU.
It should be recognised the process of e-evidence exchange in itself is difficult because Member States don’t want to lose they digital sovereignty.For sure, the hope for the future is to speed up judicial processes and to render them more effective at European Union level, obviously putting in the equation the necessary checks and balances.
For further information:
https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1524129181403&uri=COM:2018:225:FIN
https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1524129181403&uri=COM:2018:226:FIN
Related Posts
Nowadays, protecting privacy and online data is undoubtedly a top-priority for the European Union and the single digital market, but if there is law enforcement on one side, there should also be corresponding rules on the other side providing for the sourcing and use of data as evidence.
Using data for judicial purposes in criminal proceedings is still a contentious issue within the European Union, since discussions and debates about the topic have lasted 2 years, ending in the drafting of a regulation by the European Commission permitting electronic evidence in criminal matters.
But why is it so urgent and important to have precise rules in this field?
Imagine some thieves decide to rob a house and they had previously studied the perimeter of the house to figure out how they could get in with least trouble. They stored pictures of the house in the cloud and they sent each other e-mails to agree the date and time the robbery will take place. How can the police obtain these data?
This clearly shows that criminal organisations and activities are changing, adapting their methods to the current digital era, unfortunately slowing the penal process related to the crime. Investigators, police officers and judicial authorities can no longer find sufficient physical proof of committed crimes, and have to rely upon digital evidence.
Indeed, in several criminal cases, national authorities require access to data which could be used as evidence for crimes and that can be stored by service providers in another Member State or even a third country. Unluckily, in this area there is not yet cooperation among Member States, and this inevitably slows down proceedings and doesn’t guarantee justice in the short term. This fragmentation generates legal uncertainty, since each Member State has different national regulations and processes.
E-evidence (electronic evidence of a committed crime) will be admissible in court and the European Union is trying to put in place rules to speed up the process. The proposal was presented on 17th of April 2018, under the Austrian presidency of the Council of European Union. This is going to create, if approved, a European Production Order. This order consists of a judicial authority generated in one Member State to obtain e-evidence from a service provider in another Member State. The regulation shortens the length of the process, to a maximum of 10 days or even 6 hours in cases of emergency. The order doesn’t violate in theory any human rights, since it should be issued or validated by a judicial authority after an evaluation of the proportionality and necessity in each case. Moreover, in the regulation there is an obligation to send notifications to the implicated party . Importantly, the proposal refers only to stored data and not to real time interception.
However, there are many concerns related to different aspects of this regulation. The proposal could affect fundamental rights and fundamental freedoms in different ways:
- The party whose data is requested can interpret this as violated personal data, right to respect private or family life, freedom of expression, etc.;
- European citizens might feel that their right to liberty and security are not protected anymore;
- The regulation provides that the European Production Order “may only be issued if a similar measure is available for the same criminal offence in a comparable domestic situation in the issuing State” ;
The question comes naturally then: what if in the enforcing State the criminal act is treated with a different seriousness? Or is not even considered a criminal act at all?
What happens for example if a French woman has an abortion in Poland (where it is illegal), then goes back to her country (where abortion is permitted) and Poland requests e-evidence of the crime to Google, for example, which has the headquarter in Ireland?
These are the main points upon which the European Union is still discussing, and for which there is not yet a solution; whose laws should be prioritised ? The law of the country where the crime was committed or the laws of the country where the (vital) evidence is being held ?
Undoubtedly, the Commission is also working on the implementation of other practical measures, such as supporting cooperation with service providers in USA, through capacity building, as well as the establishment of a secure platform for the exchanges of requests within the EU.
It should be recognised the process of e-evidence exchange in itself is difficult because Member States don’t want to lose they digital sovereignty.For sure, the hope for the future is to speed up judicial processes and to render them more effective at European Union level, obviously putting in the equation the necessary checks and balances.
For further information:
https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1524129181403&uri=COM:2018:225:FIN
https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1524129181403&uri=COM:2018:226:FIN
