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EU: Council of the European Union: Encryption of data - Questionnaire

26 September 2016

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"Over lunch during the informal meeting of the Justice Ministers (Bratislava, 8 July 2016) the issue of encryption was discussed in the context of the fight against crime. Apart from an exchange on the national approaches, and the possible benefits of an EU or even global approach, the challenges which encryption poses to criminal proceedings were also debated. The Member States' positions varied mostly between those which have recently suffered terrorist attacks and those which have not. In general, the existence of problems stemming from data/device encryption was recognised as well as the need for further discussion.

To prepare the follow-up in line with the Justice Ministers' discussion, the Presidency has prepared a questionnaire to map the situation and identify the obstacles faced by law enforcement authorities when gathering or securing encrypted e-evidence for the purposes of criminal proceedings." [emphasis added]

A number of questions to Member States concern whether judicial authorities have to agree access including:

"Under your national law, is there an obligation for the suspects or accused, or persons who are in possession of a device/e-data relevant for the criminal proceedings, or any other person to provide law enforcement authorities with encryption keys/passwords? If so, is a judicial order (from a prosecutor or a judge) required? Please provide the text of the relevant provisions of your national law." [emphasis added]

See the full text: Encryption of data - Questionnaire (LIMITE doc no: 12368-16, pdf)

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