Additional Concerns of EP Regarding E-Evidence Legislative Proposal
19 April 2019
2018-Max_Planck_Herr_Wahl_1355_black white_Zuschnitt.jpg Thomas Wahl

Birgit Sippel (S&D, Germany), the EP rapporteur in the LIBE committee responsible for the Commission proposal on law enforcement access to e-evidence, voiced more criticism (see already eucrim 4/2018, p. 206). In two subsequent working documents, Sippel and co-rapporteurs/shadow rapporteurs examined the scope of the application and the relation of the proposed instrument to other European instruments and the role of service providers.

In part A of the so-called “2nd working document” of 6 February 2019, Sippel and co-rapporteur Nuno Melo (EPP, Portugal) express doubt as to whether the envisaged regulation on European Production and Preservation Orders for electronic evidence in criminal matters can be based on Art. 82 TFEU, since it is not an instrument of mutual recognition involving direct cooperation between judicial authorities, but concerns the execution of law enforcement orders by private providers. Furthermore, the EP rapporteurs stressed that it “needs to be made unequivocally clear” whether a Regulation is the right instrument or whether a Directive is appropriate for an e-evidence legal framework.

As regards subscriber data (“the data category required the most in trans-border cases, and needing swift action in order to start a criminal investigation and identify a suspect or link a suspect with a certain communication”), Part B of the 2nd working document concludes that both the European Investigation Order and the CoE Cybercrime Convention represent a “forthcoming framework” despite their limitations.

In the third working document of 13 February 2019 (part A), Sippel and co-rapporteur Daniel Dalton (ECR, UK) discuss, inter alia, whether a fully-fledged fundamental rights assessment can and should be outsourced to private service providers. In this context, they note:

“The question of the possibility of outsourcing, even privatising, state prerogatives and sovereignty, relates to core (constitutional) prerogatives of a state, such as the protection of the fundamental rights of its citizens by its national constitutional provisions/traditions and international instruments, as well as the protection against potentially unjustified encroachments of foreign authorities on its territory in the judicial/law enforcement field.”

Therefore, the question is whether the judicial authority of the state of enforcement needs to be more strongly involved.

In addition (part B of the third working document), the EP rapporteurs call for the establishment of a reimbursement regime for service providers. Ultimately, service providers need full legal certainty when it comes to their obligations and liability; they should not be left in legal limbo between law enforcement/judicial orders, data protection obligations, and third-country laws. Sippel and Dalton conclude that “the proposed Regulation, however, seems to unfortunately exacerbate the legal uncertainty for the service providers.”

The working documents of the MEPs probe several critical issues already voiced by European bodies and non-governmental organisations (see details in eucrim 4/2018, p. 206; 3/2018, pp. 162-163, and 2/2018, pp. 107-108). In the light of these considerations, it remains unlikely that the EP and the Council will reach a compromise on the legal instrument by the end of the parliamentary term in May 2018. Council Pushes for E-Evidence Law, EP Applies the Brakes