02 Mar 2020

Cross-border Access to E-Evidence

Framing the Evidence

Gloria González Fuster / Sergi Vázquez Maymir

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This paper aims at situating the policy discourse accompanying current European Union (EU) initiatives on facilitating access by public authorities to data held by private companies, including in scenarios regarded as crossing jurisdictional borders. More concretely, it contextualises these initiatives in light of the absence of publicly available statistical information on some of the issues which are at the very core of these matters.

Firstly, the paper presents the three main current developments, that is, the proposed ‘E-evidence package’, the negotiation of an EU-United States (US) agreement facilitating access to e-evidence for the purpose of judicial cooperation in criminal matters, and the participation of the EU in the negotiations in the Council of Europe on a second additional protocol to the Cybercrime Convention, analysing some of the recurrent messages associated with defending the necessity of all these different measures. The Brief then reviews some of the information upon which are being constructed arguments used to purport the need for these developments, by granting particular attention to the Impact Assessment that accompanied the publication of the ‘E-evidence package’. Finally, it suggests that the absence of statistical data might have implications for the assessment of the proportionality of eventual legislative measures.

This paper has been prepared in the context of the JUD-IT (Judicial Cooperation in Criminal Matters and Electronic IT Data in the EU: Ensuring Efficient Cross-Border Cooperation and Mutual Trust) Project, with financial support from the Justice Programme of the European Union (JUST-AG-2016-01).