On Tuesday 5 February, the European Commission adopted a draft negotiating mandate for an EU-US agreement on cross-border access to electronic evidence (see EUROPE 12165), which Member States are awaiting eagerly (see EUROPE 12033).
"85% of all criminal investigations now involve electronic evidence [...] A lot of this evidence is stored on Cloud servers outside the EU, namely in the United States”, said the European Commissioner of Justice, Věra Jourová, at a press conference.
The EU and the United States already have a mutual legal assistance agreement, which entered into force in 2010, to facilitate the exchange of evidence. Nevertheless, according to the Commissioner, this mechanism is not an effective tool.
“Mutual legal assistance with the United States takes an average of 10 months, which gives criminals a lot of time to erase evidence”, she said.
Currently, US-based service providers cooperate with European law enforcement authorities on a voluntary basis and are not always allowed under US law to respond directly to European requests for access to electronic evidence.
Under the proposed mandate, EU judicial authorities will be able to contact directly a service provider subject to US law, and the deadline for transmitting the requested data would be shortened to 10 days.
The agreement would also address possible conflicting obligations for service providers that could arise under EU and US law for content data such as e-mails, text messages, photos, videos, as well as for other data, such as subscriber data.
It also provides several guarantees in terms of data protection, privacy and procedural rights. The agreement will be built on the basis of the framework agreement negotiated between the European Union and the United States on the transfer of personal data between the US police and judicial authorities, the Commissioner said.
Budapest Convention. On the same day, the Commission also presented a draft mandate to participate, on behalf of the EU, in the negotiations on the Second Additional Protocol to the Council of Europe Convention on Cybercrime (Budapest Convention), which began in 2017 and are expected to be completed in December 2019.
This would ensure that the protocol is compatible with current and future EU law, the Commissioner explained.
In the Commission's view, the two draft negotiating mandates are closely linked, and their simultaneous presentation is no coincidence. The institution believes that the negotiations will frequently address related issues and that commitments made in one negotiation could have a direct impact on the other.
The EU Council must now formally adopt a decision authorising the Commission to open these negotiations. Věra Jourová expressed confidence that it would be adopted quickly by Member States and indicated that signs on the American side were also positive.
The Commissioner hopes to convince US authorities to derogate for the EU from the provisions of the ‘CLOUD Act’, which only allow bilateral agreements with foreign governments (see EUROPE 11988).
The two draft mandates will be presented to the European Ministers of Justice on Friday 8 February in Bucharest (see other news). (Original version in French by Marion Fontana)