Dr Oriola Sallavaci, Senior Lecturer in Law, University of Essex

In recent years cross-border exchange of electronic information has become increasingly important to enable criminal investigations and prosecutions. As I have discussed in depth in my study “Rethinking Criminal Justice in Cyberspace: The EU E-evidence framework as a new model of cross-border cooperation in criminal matters” the use of technology has transformed the nature of crime and evidence leading to ‘crime without borders’ and ‘globalisation of evidence’. An increasing number of criminal investigations rely on e-evidence and this goes beyond cyber-dependent and cyber-enabled crimes. From an evidential point of view, today almost every crime could have an e-evidence element as often offenders use technology, such as personal computers, notepads, and camera phones, where they leave traces of their criminal activity, communications or other pieces of information that can be used to determine their whereabouts, plans or connection to a particular criminal activity. 

Crime today often has a cyber component and with it an increasingly prominent cross border dimension because electronic information to be used for investigative or evidentiary purposes is frequently stored outside of the investigating State. The borderless nature of cyberspace, the sophistication of the technologies and offenders’ modii operandi pose specific and novel challenges for crime investigation and prosecution that, in practice, may lead to impunity.  In 2018 the European Commission found that in the EU “more than half of all investigations involve a cross-border request to access [electronic] evidence.” Yet, alarmingly, “almost two thirds of crimes involving cross-border access to e-evidence cannot be effectively investigated or prosecuted”. Challenges to accessibility relate inter alia to the volatility of e-information, availability and the location of data, as well as the legislative barriers and shortcomings that must be overcome to enhance cross-border access to electronic evidence and the effectiveness of public-private cooperation through facilitated information exchange.

Cross border access to e-information is currently conducted through traditional judicial cooperation channels and requests are often addressed to specific states which are hosts to many service providers (SP). In the EU these include Mutual Legal Assistance requests and European Investigation Orders according to Directive 2014/41/EU which provides for the acquisition, access and production of evidence in one Member State (MS) for criminal investigations and proceedings in another Member State.  The nature of the existing judicial cooperation instruments, actors and procedures involved, and the ever-increasing number of requests have resulted in delays and inefficiencies, posing specific problems for investigations and prosecutions that are exacerbated by the volatility of electronic information.

In the EU, there is no harmonised framework for law enforcement cooperation with service providers. In recent years, Member States have increasingly relied on voluntary direct cooperation channels with service providers, applying different national tools, conditions and procedures. Service providers may accept direct requests from LEAs for non-content data as permitted by their applicable domestic law. However, the fragmented legal framework creates challenges for law enforcement, judicial authorities and service providers seeking to comply with legal requests, as they are increasingly faced with legal uncertainty and, potentially, conflicts of law.

Cross border access to electronic information requires legal instruments that are capable of efficiently supporting criminal investigations and prosecutions and that, at the same time, have in place adequate conditions and safeguards that ensure full compliance with fundamental rights and principles recognised in Article 6 of the Treaty on European Union, the EU Charter of Fundamental Rights and the European Convention on Human Rights, in particular the principles of necessity, legality and proportionality, due process, protection of privacy and personal data, confidentiality of communications, the right to an effective remedy and to a fair trial, the presumption of innocence and procedural rights of defence, as well as the right not to be tried or punished twice in criminal proceedings for the same criminal offence.

In order to achieve these objectives and overcome difficulties present in the existing mechanisms of cross-border cooperation, in April 2018 the EU Commission proposed an important legislative package referred to as “E-evidence”, aimed at facilitating the access to e- evidence by European law enforcement agencies (LEAs). The framework contains two legislative measures: a Regulation which provides two new mechanisms for LEA’s cross border access to e-evidence: European Production Order and European Preservation Order which are to be addressed directly by LEAs of the issuing MS to a service provider, and a  Directive which requires every online service provider “established” in or that has “substantial connection” to at least one EU Member State to appoint a legal representative in the territory of an EU MS of choice as an addressee for the execution of the above Orders.

On 7 December 2018 the Council adopted its own draft (known as Council’s “general approach”) and after two years of delays caused partially from the EU parliamentary elections and the Covid-19 pandemic, on 11 December 2020 The EU Parliament adopted its position. On 10 February 2021 the ‘trilogue’ procedures amid the EU Parliament, the Council, and the Commission started in order to agree to a common text. In the study cited above, I have analysed in depth the key legal provisions contained in the Commission’s proposal, the Council’s draft and the report of the LIBE’s rapporteur Birgit Sippel, presented to the EU Parliament in 2020. Considering that the E-evidence framework is currently being negotiated, the study’s analysis and findings aim to contribute to achieving the best version of the forthcoming instruments.

The EU E-evidence framework is of particular importance in shaping the future of similar instruments and the terms of cooperation between countries all over the world. To a certain extent, it follows the US CLOUD Act 2018 that in itself marks a major change in how cross-border access to e-evidence may develop in the rest of the world. The EU E-evidence framework shall influence and at the same time needs to conform to a number of new agreements currently being negotiated. In 2019 the EU Commission received a negotiating mandate to achieve an agreement between the EU and US, as well as to shape the second amending protocol of the Cybercrime Convention (CCC). Both these instruments need be negotiated from the perspective of the forthcoming E-evidence framework, therefore it is important that the latter offers provisions that increase the efficiency of investigations and prosecutions by surpassing challenges in cross-border cooperation, while maintaining safeguards to fundamental rights of individuals.

The E-Evidence legislative package lays down the rules under which, in a criminal proceeding, a competent judicial authority in the European Union may directly order a service provider offering services in the Union to produce or preserve electronic information that may serve as evidence through a European Production or Preservation Order. This framework will be applicable in all cross-border cases where the service provider has its main establishment or is legally represented in another Member State. The framework aims to complement the existing EU law and to clarify the rules of the cooperation between law enforcement, judicial authorities and service providers in the field of electronic information.  The new measures for cross border access to e-evidence will not supersede European Investigation Orders under Directive 2014/41/EU or Mutual Legal Assistance procedures to obtain electronic information. Member States’ authorities are expected to choose the tool most adapted to their situation. However, authorities of the Member States will be allowed to issue domestic orders with extraterritorial effects for the production or preservation of electronic information that could be requested on the basis of the e -evidence Framework.

Despite expected improvements in the efficiency of investigations and prosecutions by simplifying and speeding up the procedures, the necessity of having a new legal framework to organize cross-border access to electronic evidence has been questioned.  The proposed e-evidence framework is perceived as adding another layer to the already complex tableau of existing, multiple channels for data access and transnational cooperation.   While alternative approaches have been considered and could have been taken by the Commission, as I have argued in depth elsewhere, a specific framework dedicated to improving access to e-evidence is more suitable to help achieve that goal than amendments to existing procedures and instruments that are general in scope and do not provide for the specific e-information  related challenges. Procedural improvements to existing cross border cooperation instruments are necessary, but not by themselves sufficient to overcome the present difficulties and inefficiencies. It is not possible to adequately respond to novel challenges with old mechanisms embedded in lengthy procedures and bureaucratic complexities. The answer is to provide adequate safeguards that protect fundamental rights and the interests of all stakeholders, suited to the new type of instruments created by the e-evidence framework, albeit not identical to the ones found in existing mechanisms of transnational cooperation.

The E-evidence model builds upon the existing models of cooperation yet is fundamentally different. The extraterritorial dimension of the framework affects the traditional concept of territorial sovereignty and jurisdiction. It departs from the traditional rule of international cooperation that cross-border access to electronic information requires consent of the state where the data is stored.  Most importantly, jurisdiction is no longer linked to the location of data. According to the new approach, the jurisdiction of the EU and its MSs can be established over SPs offering their services in the Union and this requirement is met if the SP enables other persons in (at least) one MS to use its services and has a substantial connection to this MS.  In this way the framework avoids the difficulties in establishing the place where the data is stored and the “loss of location” problem. E-evidence framework is a clear example of the development of the concept of territorial jurisdiction in criminal law and the evolvement of connecting factors that establish it, in line with the requirements of legal certainty.

The extraterritorial reach of judicial and state authorities’ decisions in the E-evidence framework introduces a new dimension in mutual recognition, beyond the traditional judicial cooperation in the EU in criminal matters, so far based on procedures involving two judicial authorities in the issuing and executing State respectively. This important aspect of the e-evidence framework entails a fundamentally different approach that demonstrates the (need for) development of the EU law traditional concepts in order to respond to the new challenges with adequate mechanisms. From the perspective of the proposed e-evidence framework, the scope of article 82 (1) TFEU requires further clarification from CJEU or an amendment (albeit difficult). Reliant on the principle of mutual trust, the debates surrounding the e-evidence framework reveal that in today’s European reality this principle is still an objective to be achieved. For as long as disparities in the standards and protections provided by MSs still exist, the way forward should include innovative mechanisms that allow for the control, improvement and maintenance of those standards within each MS as opposed to fostering lack of trust, prejudicial treatment and unjustifiable differentiation between MSs within the EU.

The e-evidence framework generally achieves what it sets out to do: i.e. to increase the effectiveness of cross-border access to e-evidence. The application of the same rules and procedures for access to all SPs will improve legal certainty and clarity both for SPs and LEAs which is currently lacking under the existing mechanisms of cooperation. In several aspects the framework serves as a model to be followed in the international arena. However, further improvements can be recommended:

• There should be only an exceptional involvement of the enforcing MS as proposed by the Council, so that the framework does not replicate the existing judicial cooperation models.
• The wording of Article 7a in the Council draft could be amended to allow for the enforcing MS to raise objections on behalf of any affected state.
• Service Providers should maintain their reviewing powers of production and preservation orders, given the unique position they are in to understand the data. A productive dialogue and close cooperation between SPs and the issuing authorities should be promoted in the earliest stages.
• The framework should specify the definition of e-evidence and should provide for its inadmissibility in cases of breaches of the requirements specified therein.
• The data categories need to be better defined and brought in line with other EU and international legal instruments, as well as the jurisprudence of CJEU and ECtHR. The draft presented by EU Parliament is a positive step in that direction.
• Judicial validation of orders issued by non-judicial authorities should be imperative for all types of data as a form of control and safeguard against abuse or overuse.
• A classification of investigating authorities by means of a schedule in the proposed framework would help to better define the permitted activities within the scope of the Regulation.
• A provision that clearly prohibits the production or use of e-evidence in cases contrary to the ne bis in idem principle should be included in the final draft.
• The final instrument should adopt the approach proposed by the Commission regarding confidentiality and subject notification with an obligation for the issuing authority to inform the person whose content or transactional data are sought in all cases (even though delays should be permitted).
• The right to exercise legal remedies should be extended to the enforcing MS and/or the MS of residence of the suspect.
• There should be provisions that enable defendants or other parties in the criminal proceedings to access or request e-evidence. The accessibility of electronic data to the suspects / defendant’s lawyer should be ensured in order to assert their rights effectively.

If implemented, these recommendations would improve the e-evidence framework by ensuring a balance between effective criminal investigations/prosecutions and respect for fundamental rights. A balanced and principled approach should be at the core of any existing or forthcoming instruments concerning cross-border access to electronic information.