The European Commission’s Proposal on Cross-Border Access to E-Evidence. Overview and Critical Remarks

Abstract

With human activity becoming more and more dependent on digital technologies, criminal investigations increasingly depend on digital evidence. Yet the gathering of this type of evidence is far from straightforward. Besides technological challenges, one of the major obstacles that law enforcement authorities encounter is the fact that the data they need is often stored abroad or by a foreign service provider. At the international level, this results in the need to resort to mutual legal assistance and, at the EU level, to the European Investigation Order. Even the length of the procedure when resorting to the EIO is far too slow, because relevant data can be lost in the meantime. This article discusses the initiative of the European Commission to establish a European legal framework regarding direct requests for electronic evidence sent by law enforcement authorities in the EU to service providers in another EU Member State (the "e-evidence initiative"). The initiative, which is currently under debate in the EU Parliament after the Council agreed on proposed amendments, is not without controversy. The article analyses its overall structure and the most important aspects of its design, and it offers critical remarks on several major elements of the initiative.