EU facilitates access to electronic evidence

In the future, investigators from other EU countries will be able to obtain electronic evidence much more easily and quickly than before. This was agreed by the EU Commission on November 30. However, the European Parliament and the Council still have to approve the proposal.

Electronic evidence: access to be made easier within the EU

On November 30, 2022, the EU Commission agreed to facilitate access to electronic evidence, which already dates back to 2018. At the time, the EU Commission put forward a proposal to give law enforcement and judicial authorities easier and faster access to electronic evidence to investigate and also prosecute criminals and terrorists.

Now, some four years later, a tentative agreement has finally been reached. “The new rules will provide national authorities with a reliable channel for obtaining electronic evidence, while establishing strict safeguards to ensure a high level of protection of data subjects’ rights,” reads the press release from the European Commission.

The agreement on the new regulations is currently still provisional, however, and still requires the formal approval of the European Parliament and the Council for the entry into force.

In this regard, the regulation mainly covers European surrender orders and protective orders for electronic evidence, and aims to “adapt the cross-border cooperation procedure of authorities to the digital age, provide the judiciary and law enforcement with tools to deal with today’s communication methods of criminals.”

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Data issuance via decentralized IT system

The European surrender order aims to make electronic evidence available to judicial authorities via a decentralized IT system. Within ten days, and in emergencies even within eight hours, the data must be retrievable.

The European backup order, on the other hand, is designed to ensure that data is deleted and allows judicial authorities in one member state to require a service provider in another member state to store certain data.

“Both orders can only be issued in the context of criminal proceedings and to locate convicted offenders who are evading justice,” the notice continues.

Strict safeguards and remedial measures are intended to ensure that fundamental rights and personal data are protected under the new rules.

“In cases where a person does not reside in the ordering state or the crime was not committed there, Member States must notify the national authority where the service provider is located if they wish to obtain traffic and content data.” However, under certain conditions, the notifying authority may invoke several grounds for refusing the order. For example, to protect fundamental rights or immunities and privileges.

If the European Parliament and the Council approve the political agreement, the new EU regulation will officially enter into force 20 days after its publication, but will not become applicable until three years after its entry into force. The directive, on the other hand, enters into force 20 days after its publication; here, member states must implement the new components in their national laws within two and a half years.