30 October 2018
A European Commission working document proposes providing Europol with funding to develop a "technical solution" that would facilitate the use of "lawful interception" techniques to help member state authorities obtain "access to relevant data in the context of criminal investigations before the data becomes encrypted" - presumably a reference to the bugging or hacking of user devices.
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Working Document from: Commission Services to: Delegations: Non-Paper on the Role of Encryption in Criminal Investigations (Council document WK 12742/2018 INIT, LIMITE, 24 October 2018, pdf, emphasis added):
"The envisaged solution would allow for the development of the necessary capabilities at Europol to support Member State lawful interception regimes. Such regimes would provide lawful access to relevant data in the context of criminal investigations before the data becomes encrypted. This would be supported by appropriate safeguards as well as measures to ensure oversight and transparency while following the basic principles of legality, proportionality and necessity, making certain techniques a measure of last resort, whilst respecting the fundamental rights of both current and potential subjects.
Depending on Member State requirements, the solution would offer capacities to support several Member State investigations in parallel.
Purchasing the solution “as-a-service” would provide support to Member State lawful interception regimes if and when needed in the context of criminal investigations. With this in mind, Europol has already held exploratory technical discussions with Member States’ Operational Security experts. The actual scope and capabilities of the solution would be defined in cooperation with Member State experts as part of the tendering process for the purchasing of the solution.
The funding provided to Europol would allow for such a solution to be rigorously tested in pilot format prior to considering the permanent inclusion of this functionality to support Member State lawful interception regimes within Europol’s budget. A final decision in this regard would be taken following thorough consideration of data protection and fundamental human rights concerns, and be based on a thorough evaluation of the solution’s feasibility, risk implications, value of output and user experience."
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