Whether in the field of cyberattacks, online sexual exploitation of children or cross-border payment fraud, the lack of unified data retention remains a major challenge for law enforcement authorities. This is one of the conclusions drawn by Eurojust and Europol in their report, published on Friday 5 July, which identifies the main common challenges in the fight against cross-border cybercrime.
The rulings of the Court of Justice of the EU repeatedly invalidating national and European mechanisms have left Member States' law enforcement authorities and prosecutors uncertain about the possibilities of obtaining data from private parties, the report points out.
In its ‘Digital rights Ireland’ judgment of April 2014 (see EUROPE 11056/24), the CJEU invalidated the 2006 Directive, which allowed telecom operators to store their customers' telephone data for a maximum of 6 to 24 months so that police could use it for the purpose of preventing or investigating terrorism and serious crime, on the grounds that it seriously violated fundamental rights.
According to Eurojust and Europol, the 2016 ‘Télé2Sverige’ judgment (see EUROPE 11694/16), which sets additional red lines, has further aggravated the problem.
In some Member States, national legislation is still in place to ensure that Internet service providers retain data for law enforcement purposes, while in other Member States, national legislation has been repealed following the CJEU ruling.
“Such discrepancies impede the work of the cyber-competent authorities and may result in the loss of investigative leads and ultimately affect the ability to effectively prosecute criminal activity online” the report explains.
On 6 June, the EU Council adopted conclusions (see EUROPE 12270/35) requesting the Commission to prepare an in-depth study on possible solutions for the retention of telecommunications data for law enforcement purposes, including the examination of a future legislative initiative. Without commenting on a possible new legislative proposal, the Commission responded positively to this request and assured that the study would be available before the end of 2019 (see EUROPE 12278/27).
The in-depth analyses carried out by Eurojust and Europol after the CJEU judgments showed that the majority of Member States' law enforcement and judicial authorities would support a legislative framework at European level, the report stresses.
Other challenges identified in the report include the physical location of criminals made more difficult by the use of encryption or anonymisation tools, as well as the use of virtual currencies, but also differences between national legal frameworks in EU Member States or the multiple obstacles to effective and rapid international cooperation.
See the report: https://bit.ly/2LEToqr (Original version in French by Marion Fontana)