On Thursday 6 September, MEPs at the European Parliament Civil Liberties Committee proceeded to an initial discussion about the draft regulation establishing European production and conservation orders that allow for electronic evidence to be obtained directly from service providers (see EUROPE 12003). This provided an opportunity for sounding out each party's first impressions.
The European Parliament rapporteur, Birgit Sippel (S&D, Germany) focused on the direct cooperation model proposed by the Commission, which has already been criticised by several of the stakeholders (see EUROPE 12066, 12004) and about which the Council is also asking questions (see EUROPE 12087).
She stated that “Whereas mutual legal assistance in the field of judicial cooperation until now has only meant mutual recognition of judicial decision from one MS by the judicial authority of another member state, the present proposition completely circumvents the judicial authority of other member states”.
She also said that one of the consequences would be that European electronic evidence production orders could therefore be issued for offences deemed criminal in one member state but not in another.
Sophie in’t Veld (ALDE, Netherlands) is also far from convinced by its legislative proposals. She said that they should have begun by “repairing” the existing instruments that were performing badly rather than putting new proposals on the table.
The Commission did its best to justify its action. Tania Schroeter in charge of the dossier at the European Commission looked at the existing instruments, such as the European investigation decision and the mutual legal aid treaties and highlighted the sluggishness of procedures.
The proposals are in fact based on another mechanism developed in practice, the voluntary cooperation with service providers in the US for certain kinds of data. She indicated that in 2016, four major US service providers received an average of 120,000 requests for evidence from the EU member states.
Conversely, the other side of the solution is that it took place outside of any legal framework and therefore without any legal certainty, which encouraged the Commission to take action.
She explained that this distancing of traditional tools was down to the need for a swift mechanism, as well as the observation that the member state in which the service provider is located does not, in general, have any specific link with the ongoing investigation, which justifies the fact that the legal authority of this member state is not involved.
Another criticism made by the MEPs focuses on the deadlines issued for service providers to respond to European orders, namely 10 days and 6 hours in the most urgent cases.
Daniel Dalton (ECR) explained that if the companies transmit the data erroneously, it should not be ignored that this could constitute a possible infringement to the general data protection regulation, which would expose them to additional substantial fines.
Birgit Sippel also said that she was surprised to see “completely new” categories of data in the Commission proposal, which were different to the classification of data already adopted for other European instruments. To sum up, after this first discussion, it appears that the dossier has a long way to go at the European Parliament, which intends to proceed to a meticulous examination. The first meeting between the shadow rapporteurs will take place next week. (Original version in French by Marion Fontana)