Negotiations between the political groups in the European Parliament on the Commission's proposals to facilitate cross-border access to electronic evidence (see EUROPE 12003/18) are ongoing, in view of a vote in the European Parliament Civil Liberties Committee (LIBE), scheduled, according to our information, for 26 March.
After several attempts at compromise, no agreement has yet been reached on the issue of prior authorisation by the executing State for the production of data, which remains the most political and problematic (see EUROPE 12413/14), according to several sources.
"We are concerned about the current direction the negotiations have taken. Our main goal is to prevent uncontrolled cross-border access to personal data during criminal investigations", German MEP Sergey Lagodinsky, who is negotiating on behalf of the Greens/EFA group, told EUROPE.
In order to find a compromise between the S&D, Greens/EFA, GUE/NGL groups in favour of a strong notification procedure and the EPP, ECR, ID and RE groups who want a lighter procedure, the rapporteur, Birgit Sippel (S&D, Germany), proposes that subscriber data and IP address-related data can be directly transmitted by service providers for the purposes of revealing a user's identity, as soon as possible, without waiting for authorisation from the executing state.
However, for the Greens/EFA group, once the identity has been revealed, the guarantees proposed by Ms Sippel, such as the obligation to delete the information obtained and not to use it in the context of an investigation if the authority of the executing State subsequently objects, will not suffice and this could even endanger certain protected professions.
For content and traffic data, the rapporteur's current proposal leaves 10 days (or 24 hours in urgent cases) for the authority of the executing State to raise objections before the requested data is transmitted by the service providers, it was explained.
The Green group wants a proper authorisation procedure from the executing State before any data is transmitted. A line generally supported by civil society organisations, including European Digital Rights (EDRi).
"For now, we don’t find sufficient safeguards against the potential for arbitrary misuse of the new power by law enforcement authorities. There is an imbalance between security and freedom", Lagodinsky said.
German MEP Moritz Körner, who is negotiating on behalf of the group Renew Europe, has a completely different solution to ensure that the final agreement contains both strong fundamental rights safeguards and as little bureaucratic burden as possible.
He wants to limit the scope of the regulation to strictly domestic cases, i.e. to cases where the crime, the crime suspect, and the investigatory authority are in the same country, in order to exclude complicated cases, which may have significant fundamental rights implications and would require substantial bureaucratic notification and verification procedures.
Mr Körner also proposes that data requests from Member States that are subject to an Article 7 rule of law procedure are always fully verified by the authorities of the Member State where the service provider that hosts the required data resides. He also suggests that data related to journalistic work should be excluded from the scope of the Regulation, in order to protect the profession.
The political groups therefore still have a lot of work to do to coordinate their positions. They will hold another technical meeting on Thursday 5 March, which should be followed by two more meetings next week, before a crucial political meeting between shadow rapporteurs on 18 March. (Original version in French by Marion Fontana)