Negotiating international rules on electronic evidence

Vera Jourova

The Commission recommended last Tuesday engaging in two international negotiations on cross-border rules to obtain electronic evidence, the EU press service reported. With the majority of criminal investigations requiring access to evidence based online and often outside the EU, there is an urgent need to equip police and judicial authorities with quick and efficient tools fit for modern reality.

Following up on the European Council Conclusions from October 2018, the Commission is presenting two negotiating mandates, one for negotiations with the US and one on the Second Additional Protocol to the Council of Europe “Budapest” Convention on Cybercrime. Both need to be approved by the Council, and include specific safeguards on data protection, privacy and procedural rights of individuals.

“Criminals use fast, modern technologies to organise their crimes and cover up their evidence. Much of the data needed to track down these criminals is stored in the US or by US companies. It is time to work on a comprehensive EU-wide agreement with the US to speed up the access of our law enforcement authorities to this evidence,” Justice Commissioner Vera Jourova said. With an increasing number of investigations needing access to electronic evidence, the Commission proposed new rules making it easier for police and judicial authorities to follow leads online and across borders.

Currently, US based service providers cooperate with European law enforcement authorities on a voluntary basis. The negotiating mandate proposed by the Commission aims to ensure timely access to electronic evidence for law enforcement authorities in the EU by shortening the time period for supplying the requested data to 10 days (currently it takes on average 10 months), and address legal conflicts by setting out definitions and types of data covered, clarifying legal obligations and ensuring reciprocal rights for all parties.

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