The Council of the EU is continuing its examination of two legislative proposals to improve access to electronic evidence held by communication service providers (see EUROPE 12003).
It should be recalled that the Bulgarian Presidency of the Council questioned the member states at the beginning of June on a number of key provisions. These include the question of interaction between service providers that received a European Production Order on data and the legal authority in a member state that issues the order (see EUROPE 12042).
The first responses received appear, above all, to warn against any disproportionate responsibility incumbent on digital service providers. The Presidency would particularly like to take the pulse of the member states on the question of whether a provider should have the possibility of opposing or requesting clarification when they consider that the order is incomplete, contains blatant errors or that it violates the fundamental rights of the individual targeted.
In its written contribution, Finland explains that “As a whole, the role the proposal foresees for the service providers seems unrealistic - even more so, when taken into account that service providers may also be SMEs (small or medium sized enterprises)”.
Several member states consider that this role would involve an excessive administrative load and very high costs for digital service providers. They also highlight the fact that these providers do not have a remit for assessing respect for fundamental rights themselves.
Latvia argues that providers would also be able to abuse this provision in an attempt to delay or block the procedure.
Sweden, Finland and Latvia think that it would be more appropriate for the authorities of the member state of the service provider to perform this role and appeal for greater involvement of these authorities in the procedure and that they intervene much earlier than what has been proposed.
They are proposing that the authority in the country of the provider could, for example, receive a copy of an order decision at the same time that it is issued by the authority responsible in the other member state and sent to the service provider. The national authorities would then be able to respond in the event of issues relating to fundamental rights or national security.
Re-examination procedure. The Presidency also invited the member states to give their views on the procedure for re-examining the order in the event of contradictory requirements based on fundamental rights or the fundamental interest of a third country.
The Czech Republic argues that this subject should be tackled directly in the international agreements and take into account the differences in the legal systems of third countries. It also considers that this is not a necessary condition for concluding an executive agreement with the US in compliance with the US ‘CLOUD Act’ (see EUROPE 11988).
Nonetheless, if this procedure is in fact maintained, Prague considers that it should be significantly simplified and take into account the questions raised by the Council's legal services about its compliance with EU rules.
Finland emphasised that “These proposals are rather delicate in nature and therefore member states need enough time to first carefully form their national positions and then to react should there be any new formulations or questions on the table in the future”.
In several countries, the proposals are still at the beginning of the Parliamentary examination stage. (Original version in French by Marion Fontana)