In recent years, important steps have been made at European level to develop an adequate legal framework to address the challenges posed by the gathering of e-evidence.
In April 2015, the EU underlined possible solutions to allow for timely access to electronic evidence in its Communication ‘EU Agenda on Security’. The Commission’s commitment was supported by the Council of the EU which adopted, on 9 June 2016, its Conclusions on ‘Improving criminal justice in the cyberspace’ calling on the Commission to take actions to improve cooperation with service providers, make mutual legal assistance more efficient and propose solutions to the problems of determining and enforcing jurisdiction in cyberspace. As a consequence an expert consultation process, including a detailed questionnaire, was launched in July 2017. The questionnaire revealed that there was no common approach to obtain cross-border access to electronic evidence for which each Member State had developed its own domestic practice. There is a diversity of approaches, mainly due to the lack of a common legal framework on obtaining e-evidence, which creates legal uncertainty and clear obstacles to cross-border investigations. As a result, a detailed technical document, although not adopted or endorsed by the European Commission, was presented in 2017. It was this document that laid down the foundation of the European Production Order. In fact, as a possible measure, the document stated: ‘A common framework across Member States could provide a basis for and recognise the legality of the current practices of direct cooperation, i.e. providing law enforcement and judicial authorities with the competence to make non-binding production requests for cross-border access to electronic evidence, and allowing service providers to disclose electronic evidence to foreign authorities on the basis of such a production request, without passing through local law enforcement or judicial authorities’.
As the final preparatory paper, the European Commission issued an Impact Assessment in April 2018 where it emerged clearly that in cross-border cases authorities have to rely on one of three channels: judicial cooperation between public authorities (often too slow), direct cooperation between public authorities and a service provider (often cumbersome and not transparent) and direct access to e-evidence (where legal frameworks remain fragmented). The document also indicated that although the European Investigation Order (EIO), in application since May 2017, covers the gathering and transfer of evidence between Member States and makes Mutual Legal Assistance (MLA) procedures faster, it is still considered insufficient, slow and therefore ineffective by national experts for accessing e-evidence in criminal investigations. Therefore, in the absence of EU intervention, the e-evidence gathering problem could only have been exacerbated by long time-consuming MLA requests and insufficient public-private cooperation between service providers and public authorities.
On 17 April 2018, the European Commission proposed new rules to better equip law enforcers and judicial authorities. As a matter of fact, the EIO and the MLA procedures will continue to exist, but there will be new avenues, or ‘fast tracks’ for the specific case of electronic evidence. The new legal framework that builds upon the provisions of the EIO, which effectively provides assistance between law enforcement and judicial authorities in different EU Member States, will complement it by creating a set of clear and coherent principles to enable requests by law enforcement and judicial authorities in one Member State to be made directly to a service provider in another Member State for the disclosure of data. This new set of rules consists of two proposals: 1) the Proposal for a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters and 2) the Proposal for a Directive laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings.