Access to digital data has become essential for criminal investigations in the European Union. And for good reason: electronic evidence is needed for 85% of them, according to data provided by the EU Council (https://aeur.eu/f/ekn ). The 2024 edition of the ‘Sirius’ report, published on Thursday 28 November by Eurojust, Europol and the European Judicial Network, concurs with this observation.
However, and despite legislative advances in this area, such as that on digital services (DSA) (see EUROPE 13064/18) or the legislative package on electronic evidence (see EUROPE 13200/7), the document notes that EU competent authorities continue to face major problems in the cross-border acquisition of electronic evidence.
Law enforcement agencies still prefer to cooperate voluntarily with foreign service providers to obtain non-sensitive data.
However, although this method is quick, it lacks legal certainty and can expose companies to conflicts of legislation. What’s more, the judicial channels, which are essential, are hampered by their slowness. And the diverse legal frameworks among Member States exacerbates these problems.
While the latest legislation, such as the Second Additional Protocol to the Budapest Convention on Cybercrime (see EUROPE 13101/7), aims to speed up these processes and is welcomed by the judiciary, concerns remain, notably regarding the lack of a harmonised framework for data retention and the lack of training on these new procedures. In 2023, 46% of European judges were still unaware of the specific features of the legislative package on electronic evidence.
On the service provider side, the volume of data disclosure requests increased by 22% in one year, with a record success rate of 74%. However, companies are calling for clear guidelines and greater cooperation to enable them to adapt by August 2026, when the new rules come into force.
The report also highlights the central role of Europol’s ‘Sirius’ project, which helps police and judicial authorities access cross-border electronic evidence in criminal investigations and proceedings.
Intensifying training, extending single points of contact and deepening public-private partnerships, including the management of evidence from digital platforms and cryptocurrency exchanges, are also advocated.
As cybercrime increases, the EU must both harmonise its legal frameworks and invest in the capabilities of its players to ensure an effective response to digital crime.
The report: https://aeur.eu/f/ek8 (Original version in French by Nithya Paquiry)