The EU Parliament, Council and Commission have bridged their differences on several fundamental points regarding accessing cross-border electronic evidence, but some political issues remain.
The e-Evidence package is intended to facilitate access to electronic communications across EU countries in the context of criminal investigations. As a result, law enforcement agencies could request access to evidence directly from the service provider in the other member state or even ask that the data be retained.
Online service providers would also have to appoint a legal representative in the EU to coordinate requests for access to electronic evidence.
“With evidence often stored in service providers like social networks that are based in other Member States, access to evidence can be a lengthy and cumbersome process, and data is too often deleted in the process,” said European Parliament’s rapporteur Birgit Sippel.
One of the most controversial points is the notification mechanism, which defines the conditions in which the authority issuing the access request should inform the authorities in the executing member states.
For governments represented in the EU Council, making this process too burdensome would defeat the purpose of the regulation, whereas MEPs and civil society called for safeguards for protected categories such as journalists, lawyers and political activists.
The member states managed to pass the so-called ‘residence criterion’. In other words, if the individuals concerned are residents in the member state executing the order, there is no need to inform the authorities of the executing country where their data is stored. The notification will not be required if the requested information can merely identify a person.
In exchange, MEPs obtained the suspensive effect of the notification. When a law enforcement authority requests content and traffic data, the other member states will have ten days, or eight hours in case of emergency, to raise some grounds for refusal.
The suspension effect provides that the service provider will have to secure the requested communication but will not be able to release it until the deadline has passed with no refusal raised.
The executing member states might contest the order if it goes against fundamental rights or immunities enshrined in its legal framework, including press freedom. Lawmakers passed the principle of dual criminality, namely that the persecuted crime must also be recognised in the executing country.
Special safeguards from alleged fundamental rights violations have been introduced to refused orders issued by member states whose rule of law has been officially called into question via the activation of EU procedures, as is currently the case for Hungary and Poland.
Still to be solved
A political point still to be solved is if the executing member states ‘might’ or ‘shall’ contest the order if one or more grounds for refusal were found. The Parliament is pushing for the latter wording, as lawmakers want to ensure these safeguards would be applied appropriately.
In line with the GDPR, the EU data protection law, the order will have to be addressed to the data controller, the organisation that decides why and how the data is processed. Only in exceptional circumstances the authorities will refer directly to the data processor, the organisation that processes the data on behalf of the controller.
The EU co-legislators only agreed in principle to the setup of a common European exchange, an EU-wide platform to issue the orders intended to guarantee the confidentiality and authenticity of the orders to the service providers.
While the interinstitutional meeting, trilogue in jargon, led to significant progress on several essential points, the differences between the co-legislators might still be too substantial to be solved at the technical level, according to two sources informed on the matter.
The French negotiators were under substantial political pressure to reach an agreement before the end of their Presidency on Friday and even asked for a new political trilogue on Thursday. However, such a tight schedule could not accommodate the European Parliament.
[Edited by Alice Taylor]
Source: euractiv.com
