The ambassadors of the European Union member states have confirmed the agreement reached between the presidency of the Council and the European Parliament on the draft regulation and the draft directive regarding cross-border access to electronic evidence. The agreed texts will allow competent authorities to address electronic evidence warrants directly to service providers in another Member State.
The agreement responds to a key request from law enforcement, as more and more crimes are planned or committed online, and authorities need the tools to prosecute them as they do for offline crimes. The new rules will allow judges and prosecutors to act quickly, accessing the evidence they need, regardless of where it is stored, before it disappears.
The regulation on European orders for the production and preservation of electronic evidence in criminal proceedings aims to introduce an alternative mechanism to existing international cooperation and mutual legal assistance tools. It specifically addresses the problems arising from the volatile nature of electronic evidence and the aspect of loss of location by establishing new procedures for fast, efficient and effective cross-border access.
The regulation creates European production and preservation orders that can be issued by judicial authorities in order to obtain or preserve electronic evidence regardless of where the data is located. These orders can cover any category of data, including subscriber, traffic and content data. A threshold has been set for traffic data (except for data requested for the sole purpose of identifying the user) and for content data. They may only be requested for offences punishable in the issuing country by a maximum prison sentence of at least three years, or for specific offences related to cybercrime, child pornography, counterfeiting of non-cash means of payment or terrorism.
There is a mandatory 10-day deadline to respond to a production order. In duly established cases of urgency, the period may be reduced to eight hours. Service providers may face penalties if they fail to comply with an order. Financial penalties of up to 2% of their total annual worldwide turnover for the previous year may be imposed.
Except in cases where the issuing authority considers that the crime has been committed or is likely to be committed in the issuing country or the person whose data is requested resides in its own territory, a notification system will be set up for traffic data and content data. The purpose of this notification is to inform the executing state and give it the opportunity to assess and, if necessary, raise one or more of the grounds for refusal provided by law, such as the requested data being protected. The executing state will have 10 days or, in emergency situations, 96 hours, to lift the grounds for denial. If this occurs, the service provider must stop the execution of the order and not transfer the data and the issuing authority shall withdraw the order.
The directive on the designation of establishments and appointment of legal representatives for the collection of electronic evidence in criminal proceedings will be an essential instrument for the implementation of the regulation. The rules applicable to the appointment of the legal representatives of service providers or to the designation of their designated establishments responsible for receiving and responding to these orders are established. This is necessary due to the lack of a general legal requirement for non-EU service providers to be physically present in the Union. In addition, legal representatives or establishments designated under this directive could also participate in national procedures.