Council struggles to fomulate policy to get full access to all communications while respecting fundamental rights
15 March 2017
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EU
Cyberspace: Council
struggles to formulate policy to get full access to all communications
while respecting fundamental rights
15..3.17
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The Council is seeking to find a common position on access all content everywhere for the purpose of gathering evidence in possible criminal cases and intelligence-gathering, including breaking encryption, while at the same time respecting fundamental rights:
See: Criminal justice in cyberspace - improving collaboration and coordination(LIMITE doc no: 6890-27, pdf):
"The ECJ's rulings on European and national data retention regimes create both uncertainty about the possibilities to obtain data from private parties as well as a fragmented environment for cooperation between Member States. The Commission is working on guidelines to assist Member States in constructing national legislation in conformity with the latest ruling. The negotiations on the new draft e-privacy Regulation will have to address the current difference between the obligations put upon traditional telecommunication providers and those for "over-the-top" providers (such as Skype, Whatsapp), because their services are being used interchangeably by customers and criminals."
Public-Private Partnerships
"Cooperation with the private sector is vital for the successful fight against crime because it holds much of the e-evidence critical for the successful outcome of investigations but also because this sector has the tools and capacity to take down criminal infrastructures, block and remove illegal content such as terrorist propaganda, child sexual abuse materials or hate speech, report data breaches etc. It is therefore one of the work strands of the above-mentioned e-evidence expert process.....
All such initiatives require, however, a suitable legal framework and clear rules of engagement so that trust between the public and private partners can be built as a basis for this effective cooperation. Currently, the situation can vary greatly depending on the private partner, Member State (authority) or provider's host country. Furthermore, data protection rules raise a number of issues and fear of liability may pose additional obstacles to the cooperation with the private sector."
International cooperation
"Although the possibility exists to request and obtain certain types electronic data directly from the service provider, the main mechanism for formal cross-border cooperation and obtaining e-evidence remains the Mutual Legal Assistance (MLA) procedure both within EU and with third countries, including the US where the big service providers are predominantly based."
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