Security Union: Commission recommends negotiating international rules for obtaining electronic evidence

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 United States and one on the Second Additional Protocol to the Council of Europe “Budapest” Convention on Cybercrime. Both mandates, which need to be approved by the Council, include specific safeguards on data protection, privacy and procedural rights of individuals.

Commissioner for Migration, Home Affairs and Citizenship Dimitris Avramopoulos said: “Crime and terrorism don’t stop at Europe’s borders. The evidence needed to investigate these crimes is even harder to pin down within borders and jurisdictions. For this reason, today we propose to step up our security cooperation with the United States and the Council of Europe, in order to ensure access to the critical electronic evidence needed for criminal investigations by European authorities.”

Commissioner for Justice, Consumers and Gender Equality Věra Jourová said: “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 U.S. or by U.S. companies. It is time to work on a comprehensive EU-wide agreement with the United States to speed up the access of our law enforcement authorities to this evidence. Such an agreement will strengthen our security, while protecting the data privacy and procedural safeguards of our citizens.”

Commissioner for the Security Union Julian King said: “We cannot allow terrorists or criminals to find refuge online abusing modern technology. We need to close the legal loopholes and together, at the international level, continue to squeeze the space in which they operate.” 

With an increasing number of investigations needing access to electronic evidence, such as e-mails or documents located on the Cloud, in April 2018 the Commission proposed new rules making it easier for police and judicial authorities to follow leads online and across borders. Given that a number of service providers are based outside of the EU, today’s mandates complete the new rules to ensure greater cooperation at the international level.

Recommending the start of negotiations with the U.S.

Currently, U.S. based service providers cooperate with European law enforcement authorities on a voluntary basis and are not always allowed, under U.S. law, to respond directly to European requests for access to electronic evidence. The negotiating mandate proposed by the Commission aims to:

• Ensure timely access to electronic evidence for law enforcement authorities in the EU and the U.S. by shortening the time period for supplying the requested data to 10 days (currently it takes on average 10 months);
• Address legal conflicts by setting out definitions and types of data covered, clarifying legal obligations and ensuring reciprocal rights for all parties;
• Guarantee strong safeguards on data protection, privacy and procedural rights in full respect of fundamental rights and the principles of necessity and proportionality.

Participating in negotiations under the Budapest Convention

The Budapest Convention is the centrepiece of international cooperation against cybercrime providing a comprehensive framework for cooperation for over 60 countries. The Second Additional Protocol, once in place, will further strengthen this international cooperation including on obtaining access to electronic evidence, enhancing mutual legal assistance and setting up joint investigations. The Commission is today proposing a mandate to participate in those negotiations on behalf of the European Union and its Members to ensure:

• Compatibility of the Protocol with current and future EU law, including in the area of cross-border access to electronic evidence;
• Enhanced international cooperation through more effective mutual legal assistance, including simplified requests, and setting up joint investigations teams;
• Direct cooperation of law enforcement with service providers in other jurisdictions;
• Stronger safeguards for the protection of personal data and national practices on cross-border access to data.

Next steps

The Commission is submitting the two recommendations for the negotiating mandates to the Council. The recommendations will now be considered by the Council, which must formally adopt a decision to authorise the Commission to open negotiations in line with the negotiating directives set out in the mandates.

Background

Electronic evidence is needed in around 85% of criminal investigations, and in two-thirds of these investigations there is a need to obtain evidence from online service providers based in another jurisdiction. Currently, the largest service providers have their headquarters in the U.S. The number of requests to the main online service providers continues to increase and grew by 84% in the period 2013-2018.

In the April 2015 European Agenda on Security, the Commission committed to review obstacles to criminal investigations. Following the tragic events in Brussels on 22 March 2016, EU Ministers for Justice and Home Affairs prioritised passing measures to secure and obtain digital evidence more efficiently and effectively. The issue has since been discussed several times by EU Ministers and in April 2018 the Commission proposed new rules for cross-border access to electronic evidence. In October 2018, European Leaders called on the Commission to urgently submit negotiating mandates for the international agreements on electronic evidence. It has also been discussed at recent EU-U.S. Justice and Home Affairs Ministerial meetings.

For More Information

Questions and Answers: Mandate for the EU-U.S. cooperation on electronic evidence

Questions and Answers: Mandate for Additional Protocol of the Budapest Convention

Recommendation authorising the opening of negotiations between the EU and the U.S. on cross border access to electronic evidence

Recommendation authorising the participation in negotiations on a second Additional Protocol to the Council of Europe Convention on Cybercrime (CETS No.185)

Links to all the documents available here.