Eleven organisations representing European and international companies that will be affected by the new European rules to facilitate access to electronic evidence called on Monday 6 January on the co-legislators to strengthen the protection of fundamental rights in legislative proposals (see EUROPE 12396/12).
This call is timely as Croatia has just announced in its work programme its intention to conclude, under its Presidency of the EU Council, the forthcoming inter-institutional negotiations on the proposals for a Regulation and Directive on electronic evidence (see EUROPE 12003/18).
The signatories - including The Software Alliance (BSA), The App Association (ACT), The Centre for Democracy & Technology (CDT) or the Council of Bars and Law Societies of Europe (CCBE) - call on the European Parliament, the Council of the EU and the European Commission to strike "the right balance" between expanding law enforcement’s ability to gather electronic evidence and protecting fundamental rights in the new e-Evidence legislation, the regulation establishing European orders for the production and preservation of electronic evidence which can be directly addressed to a service provider in another Member State (see EUROPE 12003/18).
"Without meaningful EU-wide safeguards, trust in the EU’s rule of law will decrease, and our members will bear the negative consequences", they warn.
The EU Council adopted its position on the Regulation (see EUROPE 12155/6) in December 2018, while the European Parliament wanted to take its time and carefully examine all the implications of the Regulation, which it considered to be very poorly drafted (see EUROPE 12227/8).
It has thus drawn up seven working papers (see EUROPE 12156/16, 12189/15, 12215/14) identifying all legal issues ranging from the introduction of the principle of extraterritorial application of the law to the role of "guarantors of legality" the protection of fundamental rights and the protection of service providers' fundamental rights.
Overall, the organisations welcome the draft report drafted by Birgit Sippel (S&D, Germany) and presented in November 2019 in the European Parliament Civil Liberties Committee (LIBE).
They believe that "the report goes beyond the status quo by significantly strengthening law enforcement’s ability to investigate crime and terrorism while also introducing important checks and balances against an abuse of fundamental rights", checks and balances that are sorely lacking in the EU Council's position, they regret.
The draft text, which has not yet been adopted, introduces a notification procedure similar to that desired by the Czech Republic, Greece, Finland, Germany, Hungary, Latvia, the Netherlands and Sweden, but which was not accepted by the EU Council (see EUROPE 12155/6)
According to this procedure, each decision sent by the issuing State should automatically be notified to the executing State where the service provider is established or, for service providers not established in Member States bound by the Regulation, to the country where their legal representative has been appointed.
The enforcement authority should furthermore be able to refuse recognition or enforcement of an order where such refusal is based on specific and limited grounds listed in the Regulation.
The draft report also strengthens the rights of persons whose data is requested, in particular by introducing new conditions for the issuing of European orders for the production and preservation of electronic evidence as well as clear categories of data, based on existing Community and national legislation.
The rapporteur also proposes more comprehensive information for users, the introduction of limitations on the use of the data obtained, rules on the admissibility of evidence and the erasure of data obtained, and more effective legal remedies.
In their statement, the organisations hope that the European Parliament's final report will be further improved and, above all, that it will maintain these additional protections of fundamental rights. (Original version in French by Marion Fontana)