Matthias Monroy

Internet service providers are to facilitate the work of law enforcement agencies with orders to preserve and hand over their users‘ data. With an additional directive, companies must designate legal representation and establish points of contact.

Negotiations on the EU proposals on „electronic evidence“ („e-evidence“) could be concluded this year. This is according to a note from the then French Presidency of the Council distributed to delegations of EU member states on June 16. The British civil rights organization Statewatch, which published the document, therefore speaks of an „end game“.

According to France, the second political trialogue between the Council and Parliament on June 14 was a „turning point.“ The two legislative bodies disagreed mainly on the question of whether a state may oppose another country’s order to hand over „electronic evidence“.

Agreement on „core elements“

In a third political trilogue on June 28, the parties finally reached agreement on „core elements“ of the proposed legislation. This is according to so-called four-column documents also published by Statewatch. To this end, the Council held intensive discussions with Parliament’s rapporteur Birgit Sippel (Social Democrats). Justice ministers from France and the Czech Republic were also involved.

The European Commission presented the proposal for a regulation on Production and Preservation Orders of electronic evidence in criminal matters more than four years ago. It is intended to enable the law enforcement authorities of the member states to oblige Internet service providers located in another EU state to transfer data of their users following a request. The regulation contains provisions on inventory and traffic data as well as on the content of communications.

An additional directive also requires companies to appoint legal representatives. Companies based in third countries but offering their services in the EU are also affected. They must designate a „point of contact“ within the EU to which orders from an EU country can be sent. The governments on whose territory the companies are located are left out of the loop with their own judicial authorities. The requests will only be authorized in the issuing state by a court order.

Priority of the Czech Presidency

The Czech Republic, which took over the six-month EU presidency from France, is giving the e-evidence dossier high priority. There is to be a final political trialogue at the beginning of September, and by August 19 the justice ministries of the member states are to communicate their position on the negotiations. These will be discussed at a meeting of the Working Party on Judicial Cooperation in Criminal Matters (COPEN) on September 1. Details are then to be clarified in two further technical trilogues, of which there have already been six meetings.

One of the issues still open is the so-called residence criterion. It is supposed to regulate who falls under the scope of the planned regulation. For this purpose, the Parliament proposes one year as the period for determining the permanent residence of a person. According to the Council’s definition, „habitual residence“ is to be the decisive factor.

The application of the planned regulation for „emergency situations“ is also controversial. The member states in the Council demand immediate surrender without the detours described in the regulation. The Parliament, meanwhile, insists on a „suspensive effect“.

New „exchange system“ for orders and data

New is the proposal for a decentralized „Common European Exchange System“ through which the exchange of orders and issued data will be handled. Via national contact points in all EU countries, it is to network the competent authorities from 2026. Each member state must bear the costs of setting up, operating and maintaining the system and ensure that the interfaces are interoperable with those in other countries.

The EU Commission is to specify the details in implementing acts. The digital documents distributed via the exchange system are to be classified as legally secure, for example, in the context of cross-border legal proceedings with electronic signatures and seals. Internet service providers will also be connected with their designated branches. If electronic communication via the „exchange system“ is disrupted, transmission must take place via other channels.

The new IT system should also make it possible to compile statistics on Production and Preservation Orders. This should show which of these have been issued for emergencies and which have been refused, and also document the time taken to process them. By June 30 of each year, the commission would then publish a report with data on the previous year.

Similar legislation at Council of Europe and United Nations

In parallel to the negotiations on the e-evidence regulation, the EU Commission has been discussing arrangements with the United States, including across EU borders. Under discussion is inclusion in the so-called CLOUD Act, which allows the U.S. government to issue disclosure orders to domestic Internet service providers.

With a second additional protocol to the Budapest Convention, the Council of Europe has also introduced new regulations on the release of electronic evidence. The agreement, which was negotiated over several years, was opened for signature in May. Initially, 22 member states of the Council of Europe signed it.

Finally, the United Nations is also negotiating such an agreement to combat the use of information and communication technologies for criminal purposes. Because the proposal in July 2021 came from the Russian Federation, many Western UN members were initially reserved. In the meantime, the second round of negotiations has already taken place.