Better access to e-evidence to fight crime

What is e-evidence?

The digital revolution is redefining every aspect of society, and crime is no exception. More and more criminals are using technology to plan and commit offences. As a result, authorities are becoming increasingly reliant on e-evidence to track down and convict criminals.

Electronic evidence, or 'e-evidence', refers to digital data that is used to investigate and prosecute criminal offences.

Among other things, it includes:

• emails
• text messages or content from messaging apps
• audiovisual content
• information about a user's online account

Such data can be used to identify a person or obtain more information about their activities.

In the digital era, criminals are making increasing use of tech services and tools to plan and commit crimes. As a result, e-evidence is becoming essential to fighting crime: currently, 85% of criminal investigations involve digital data.

The issue with cross-border access to e-evidence

Getting access to e-evidence can be a lengthy and complicated process for authorities because it is often saved in another country. Online service providers store users' data on servers which may be located in several countries, both in and outside the EU.

This makes it much more difficult for judicial authorities to collect e-evidence as they have to go through lengthy and complicated procedures to obtain access to it.

A cross-border request to obtain e-evidence is made in over 50% of all criminal investigations.

How the new rules will improve access to e-evidence

In April 2018, following calls from the European Council and the Council, the  European Commission proposed new rules to make it easier and faster for authorities to access e-evidence, regardless of the location of the data.

According to the Commission's initial proposal, the new rules would allow judicial authorities from one EU country to directly request access to e-evidence from any service provider offering services in the European Union and established or represented in another member state.

This would fast-track the access request as there wouldn't be any need to go through the authorities in the other member state.

The proposed rules are made up of two legislative proposals:

• a regulation on European production and preservation orders for electronic evidence in criminal matters
• a directive laying down harmonised rules on the appointment of legal representatives for the purposes of gathering evidence in criminal proceedings

Regulation on production and preservation orders

The regulation on production and preservation orders for e-evidence will enable authorities to access stored data, no matter where it is located.

The production order will allow a member state's judicial authority to directly request access to e-evidence from a service provider established or represented in another member state. The service provider will have to respond within 10 days, or within 6 hours if it is an emergency.

The preservation order will prevent e-evidence from being deleted by a service provider while the production order is still being processed.

The rules will build on the existing principles of mutual recognition between member states. They will only apply to stored data as real-time interception of telecommunications is not covered by the proposed rules.

Directive on legal representatives

The directive on legal representatives will oblige all service providers not established in the European Union but offering services in the Union to appoint a legal representative. The representative will be responsible for receiving, complying with and enforcing decisions and orders. The objective is to ensure that all service providers operating in the EU have the same obligations regarding access to e-evidence.

International negotiations

In June 2019, the Council authorised the European Commission to:

• negotiate an agreement on behalf of the EU with the United States on cross-border access to e-evidence
• participate in the negotiations with the Council of Europe on a second additional protocol to the Budapest Convention on Cybercrime

EU-US agreement

Negotiations with the United States to facilitate cross-border access to e-evidence for judicial cooperation in criminal matters started in September 2019 and are currently ongoing.

At present, US-based service providers collaborate with European law enforcement authorities through direct cooperation on a voluntary basis or through mutual legal assistance (MLA) procedures.

US law doesn't always allow service providers to respond directly to European requests for access to e-evidence. An EU-US agreement would make cooperation easier and would ensure strong safeguards are in place to protect fundamental rights.

The Commission periodically informs the Council about the state of play of these negotiations.

Second additional protocol to the Budapest Convention on Cybercrime

The Council of Europe adopted a second additional protocol to the Budapest Convention on Cybercrime on 17 November 2021. The aim of the protocol is to lay down:

• provisions for a more efficient mutual legal assistance (MLA) regime
• provisions on direct cooperation with service providers in other countries which are parties to the Convention
• a framework and safeguards for extending searches across borders

The protocol includes strong safeguards and data protection requirements. The advantage of such an agreement is its potential to apply across the globe. 

The EU cannot sign the protocol as only states can be parties to it. This is why, on 5 April 2022, the EU authorised member states to sign the protocol (in the interest of the EU).

• Access to e-evidence: Council authorises member states to sign international agreement (press release, 5 April 2022)
• Council gives mandate to Commission to negotiate international agreements on e-evidence in criminal matters (press release, 6 June 2019)