On 4 August, the European Commission launched a public consultation to identify ways of improving access to electronic evidence in criminal investigations. The exercise is open until 27 October and the results from it are expected to provide greater substance to the roadmap the Commission will be presenting in the autumn and ultimately, for its legislative proposal announced for the beginning of 2018.
In its preamble, the Commission explains that electronic evidence can provide important clues to the legal authorities or police services investigating a crime, particularly cyber crime. It points out, however, that gathering evidence in cyberspace is confronting a number of different articles such as geographical barriers: information can be stored in other countries or processed by companies based in a country that is not the same as the one as the authorities in charge of the investigation or the appropriate legal authorities.
The public consultation asks the different stakeholders about their views about the relevance of a European initiative that would enable investigators to request or demand service providers in another member state to disclose specific information about a user without having to go through the legal authorities or police services of another member state. The kind of data involved (data stored inside or outside the EU) is also subject to question. The consultation also moots the idea of introducing a European framework for situations where no intermediary exists.
During the Legal and Home Affairs Council on 8 June last, Ministers for Justice (with the exception of the United Kingdom and Czech Republic) said that it was necessary to look at the possibility of introducing EU legislative action in the area of direct cooperation with service providers and setting out common minimum conditions and guarantees for the EU with regard to direct access to data by the appropriate authorities on the basis of a computerised system (see EUROPE 11824).
Commissioner Véra Jourova explained, “I would like to use this consultation to identify the most useful European approach that will provide our practitioners with efficient tools and strengthen legal security that will subsequently strengthen fundamental rights”. [Link: https://ec.europa.eu/eusurvey/runner/PCe-evidence2017 ] (Original version in French by Sophie Petitjean)