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EU: Commission's "e-evidence" proposals: "maximising risks for fundamental rights violations"

18 April 2018

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Commission's "e-evidence" proposals: "maximising risks for fundamental rights violations"
18.4.18
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New proposals from the European Commission to make cross-border access to electronic data by police and judicial authorities "easier and faster" have been described as "a new legal shortcut to bypass existing measures, maximising risks for fundamental rights violations," by the civil society organisation European Digital Rights (EDRi), of which Statewatch is a member. The proposals and other official documentation can be found below.

See: EU “e-evidence” proposals turn service providers into judicial authorities (EDRi, link):

"Today, 17 April, the European Commission unveiled two proposals: a Regulation on cross-border access to and preservation of electronic data held by service providers and a Directive to require service providers to appoint a legal representative within the EU.

The core of the Commission’s “e-evidence” initiative is that national judicial or administrative bodies can ask a service provider, such as Facebook, based in another EU Member State, to produce and to preserve data for the investigation or prosecution of a crime. Currently, national judicial authorities receive and authorise foreign requests, in order to ensure that fundamental rights are protected. The European Union very recently adopted the European Investigation Order to improve the efficiency and speed of cross-border criminal investigations within the EU. Member States had until 22 May 2017 to implement it. Before any proper assessment of this measure has been possible, the EU now seems to be rushing into making these new proposals, following in the steps of the United States."

The organisation highlights that (emphasis added):

"if adopted, this Regulation would be putting companies at the same level as a court or a state. In fact, companies would be exempted from liability if they hand over data in response to an illegal or incorrect order. This means that if there is an invalid order which the company complies with (due to fear of sanctions for non-compliance), and if an exception to user-notification is used to keep this order secret, it will be very difficult for the user to defend her/his rights."

Alongside this concerns it may also be observed that the proposals have a very broad scope. According to Article 5 of the proposal for a Regulation on European Production and Preservation Orders:

"3. European Production Orders to produce subscriber data or access data may be issued for all criminal offences.

4. European Production Orders to produce transactional data or content data may only be issued

(a) for criminal offences punishable in the issuing State by a custodial sentence of a maximum of at least 3 years, or
(b) for the following offences, if they are wholly or partly committed by means of an information system:

– offences as defined in Articles 3, 4 and 5 of the Council Framework Decision 2001/413/JHA [on combating fraud and counterfeiting of non-cash means of payment];
– offences as defined in Articles 3 to 7 of Directive 2011/93/EU of the European Parliament and of the Council [on combating the sexual abuse and sexual exploitation of children and child pornography];
– offences as defined in Articles 3 to 8 of Directive 2013/40/EU [on attacks against information systems], of the European Parliament and of the Council;

(c) for criminal offences as defined in Article 3 to 12 and 14 of Directive (EU) 2017/541 [on combating terrorism]"

The Commission's press release (pdf) states that:

"The Commission is proposing new rules to make it easier and faster for police and judicial authorities to obtain the electronic evidence, such as e-mails or documents located on the cloud, they need to investigate, prosecute and convict criminals and terrorists.

The new rules will 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."

Official documentation

Proposals

• Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters (COM(2018) 225 final, pdf) and: Annexes 1 to 3 (pdf)
• Proposal for a Directive of the European Parliament and of the Council laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings (COM(2018) 226 final)

Supporting documents

• Impact assessment accompanying both proposals(SWD(2018) 118 final, pdf)
• Executive summary of the impact assessment(SWD(2018) 119 final, pdf)

See also: Position papers to the 2017 public consultation on improving cross border access to electronic evidence in criminal matters (European Commission, link). A summary of other submissions to the public consultation is contained in the impact assessment.

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