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Today Sophie in 't Veld hosted a Privacy Platform about law enforcement access to e-evidence and the challenges and risks that come with it.
As a consequence of the growing use of social media, email, and messaging services, an increasing number of criminal investigations have to rely on electronic data, or ‘evidence’. Who sent a certain email, and what was the content? When did someone make a Whatsapp call or what was communicated through a certain Facebook chat message?
According to the Member States and Commission, obtaining these data for law enforcement purposes can be a challenge. While criminal procedural measures to gather data as part of a criminal investigation are usually national in scope, getting access to these data often has cross-border implications. Data can be stored on servers abroad or the service provider may be located in another member state.
Authorities then have to rely on judicial cooperation mechanisms to get access, like mutual legal assistance (MLA), or on mutual recognition frameworks such as the European Investigation Order framework, which entered into force last year.
However, these procedures take time, and data transmitted can come too late to constitute evidence in a criminal investigation.
Therefore, the Commission will come up with a proposal on improving cross-border access to electronic evidence in criminal matters. What do we expect from this proposal? What are the current challenges in getting legal access to data across the border, both between Member States and between the EU and third countries such as the US? What is the role of big tech companies such as Microsoft, who are approached by authorities to disclose data stored abroad? What are the challenges and risks for fundamental rights if authorities can directly access data in cooperation with service providers? What are other options for authorities to get legal access to necessary data abroad, including respect for fundamental rights?
Karsten Behn (Article 29 Working Party), John Frank (Microsoft) and Estelle Massé (Access Now) joined our panel discussion and provided interesting perspectives on the topic. Please find the recorded session below.