On Tuesday 17 April, the European Commission unveiled its very much awaited legislative proposals that will help the police and legal authorities more easily and swiftly obtain the electronic evidence held by communication service providers in the context of a criminal investigation.
Addressing the press, Vera Jourova, the European Commissioner for Justice stated, “This is a revolution in the EU's legal cooperation system”.
According to the Commission, the existing cooperation framework between the authorities responsible for law and order is much too slow when electronic evidence is required in around 85% of criminal investigations and given that in two thirds of these enquiries, it is necessary to request evidence from online service providers based in other jurisdictional areas.
The Commission is proposing, first of all, as part of a draft regulation, the creation of a “European production order” that is legally binding and which enables a legal authority in a member state to request electronic evidence directly from a service provider that has been used “for communication purposes” and which provides services in the Union, irrespective of the location of the data in question.
The Commission is providing a ten-day deadline to providers to respond to this request and six hours in “urgent cases”. In cases involving the European Investigation Order, the deadline is 120 days and 10 months for legal mutual aid when the request is addressed to a third country.
In practice, a service provider that stores data on European users outside of the EU, for example in the US, should therefore provide the data to the European authorities that make a request for it by way of this order, except in cases where a legal conflict is involved.
This order will be completed by a “European conservation order” that will enable the legal authorities of a member state to compel a service provider to conserve specific data to allow the authority request this information at a later stage.
The proposal also makes a difference between the kind of data requested by distinguishing the so-called “content” data included in all data stored in a digital format such as text, voices, videos, from other data such as identification data or data for access and transactions. With regard to data relating to content or transactions, orders will only be made for criminal offences that can be punished in the issuing state where sentences are at least three years for specific cyber-crimes and certain crimes relating to terrorism as defined in the proposal.
This text is completed by a directive compelling service providers to appoint a legal representative in the EU, even if they are officially based in a third country. This legal representative for the Union would therefore be responsible for receiving and ensuring respect for the orders.
The texts are now in the hands of the co-legislators and the Commission is hoping for a swift adoption. According to a European official, "The ground work has been well-prepared” and the member states were awaiting the proposals. In a reference to the momentum in criminal legal cooperation, the official explained that "European Justice Ministers have never been so open".
The official explained that at the European Parliament, the balance of proposals is expected to be assessed and added that the appointment of the MEP who will put forward this dossier at the parliamentary committee will be crucial. (Original version in French by Marion Fontana)