Cross-border Access to Electronic Data through Judicial Cooperation in Criminal Matters

Monday, 3 December 2018
Liberty and Security in Europe Papers
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In the digital age, access to data sought in the framework of a criminal investigation often entails the exercise of prosecuting powers over individuals and material that fall under another jurisdiction.

Mutual legal assistance treaties, and the European Investigation Order allow for the lawful collection of electronic information in cross-border proceedings. These instruments rely on formal judicial cooperation between competent authorities in the different countries concerned by the investigative measure. By subjecting foreign actors’ requests for data to domestic independent judicial scrutiny, they guarantee that the information sought during an investigation is lawfully obtained and admissible in court.

At the same time, pressure is mounting within the EU and in the US to allow law enforcement authorities’ access to data outside existing judicial cooperation channels. Initiatives such as the European Commission’s proposals on electronic evidence and the CLOUD Act in the US foster a model of direct private–public cross-border cooperation under which service providers receive, assess and respond directly to a foreign law enforcement order to produce or preserve electronic information.

This paper scrutinises these recent EU and US initiatives in light of the fundamental rights standards, rule of law touchstones, and secondary norms that, in the EU legal system, must be observed to ensure the lawful collection and exchange of data for criminal justice purposes. A series of doubts are raised as to the Commission e-evidence proposal and the CLOUD Act’s compatibility with the legality, necessity and proportionality benchmarks provided under EU primary and secondary law.

Originally published in November 2018, this second revised and expanded version has been prepared taking into account constructive comments provided by EU officials following the “e-evidence” package within the European Commission, Directorate General for Consumers and Justice and redrafted with invaluable input from CEPS Senior Research Fellow Sergio Carrera.

Marco Stefan is a Research Fellow within the Justice and Home Affairs Section at CEPS. Gloria González Fuster is a Research Professor and a member of the Law, Science, Technology & Society Research Group at the Vrije Universiteit Brussel.