EU: Improved cross-border access to electronic evidence

The EU Parliament and Council have recently found a political agreement on the core elements of the framework for the regulation of cross-border issuing and securing of electronic evidence and other new e-evidence rules to make an investigation of cyber-crimes easier between Member States (MS).

It is now foreseeable that the final legislative package and respective Directive will be ready to adopt in 2022, representing a major paradigm shift in police and judicial cooperation with service providers in the EU.

Investigating authorities will have to inform the authorities of the other EU MS and give them an opportunity to refuse an order in specific circumstances, in particular when fundamental rights, specifically the right to a fair trial and related procedural safeguards, privacy and data protection are at stake.

Furthermore, the direct requests that for the first time national investigating authorities will be able to make to service providers will be conducted through an EU platform, guaranteeing its authenticity and the safety and confidentiality of its data.

Nevertheless, to protect the cases where the MS does not comply with the fundamental rights or restricts media freedom, specifically, service providers can also bring surrender orders not only to the attention of the issuing authority, but also to the authorities of the country in which they are located.