The European Commission’s E-evidence Proposal: Toward an EU-wide Obligation for Service Providers to Cooperate with Law Enforcement?
By Vanessa Franssen
On 17 April 2018 the European Commission published its long awaited legislative proposal on e-evidence. This proposal – which actually consists of two strongly interconnected proposals, a Proposal for a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters (‘Proposed Regulation’) and a Proposal for a directive laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings (‘Proposed Directive’) – is probably the first one in the field of criminal justice cooperation that the Council of the EU urged the Commission to put forward. Indeed, while the Member States are usually quite reluctant to give up sovereignty and to accept EU approximating rules in the field of criminal law, a number of Member States strongly pushed for a legislative intervention by the EU.
This is not entirely surprising: due to the increased use of all kinds of online services and information and communication technologies (ICTs), police and judicial authorities are confronted on a daily basis with the problem to collect electronic evidence, as the data they are looking for are often processed, transmitted and/or stored by foreign service providers, including big global technology companies such as Google, Facebook, Microsoft or Amazon. To compel a foreign person to cooperate in a criminal investigation is not obvious – the enforcement jurisdiction of police and judicial authorities is, in principle, limited to their own national territory.
This post will present the highlights of the double e-evidence proposal that is on the table and the first reactions to the proposals, at a moment where the institutional negotiations are picking up speed. Continue reading