14 Oct 2020

Cross-border data access in criminal proceedings and the future of digital justice

Navigating the current legal framework and exploring ways forward within the EU and across the Atlantic

Sergio Carrera / Marco Stefan / Valsamis Mitsilegas

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When investigating and prosecuting crime, a wide range of law enforcement and criminal justice actors increasingly seek to obtain electronic data held by service providers that are subject to another jurisdiction. Yet the processing of cross-border requests for cross-border electronic information raises several legal and practical dilemmas related to basic rule of law and fundamental rights safeguards.

This report examines the ways in which data can currently be requested, disclosed and exchanged , in full respect of the multilayered web of legally binding criminal justice, privacy and human-rights standards that apply within the EU, and in cooperation with third countries. It presents the result of discussions between members of a Task Force set up jointly by CEPS and the Global Policy Institute at Queen Mary University of London. Members of this Task Force included EU and national policymakers, providers of internet and telecommunication services, prosecutors, criminal lawyers, civil society actors and academic experts.

The report initially reviews the set of EU constitutional principles and legal instruments that uphold the existing framework for judicial cooperation in cross-border data gathering. It then looks at initiatives promoted by third countries and at the international level to establish various forms of cross-border public-private cooperation, before examining the e-evidence proposals currently discussed at the EU level.

Based on the inputs of the Task Force members, the report identifies a set of policy, normative and technical solutions that can facilitate rule of law-based and fundamental rights-compliant judicial cooperation for the purpose of cross-border gathering and transfer of data in criminal proceedings.

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