Council of theEuropean Union
Brussels, 10 February 2023
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LIMITECATS 2COPEN 35COSI 25
ENFOPOL 62
JAI 106
NOTE
From:Presidency

To:

Coordinating Committee in the area of police and judicial cooperation incriminal matters (CATS)

Subject:

Going Dark: Justice perspectives on access to communications data forlaw enforcement purposes

Introduction
Access to data related to internet and electronic communications has become an essential part ofmost criminal investigations 1.
New digital services are continuously being made available, providing citizens, companies andorganisations with efficient and secure ways to exchange and process information. This has meantthat policymakers have had to deal with a double evolution.

1

In its EU Security Union Strategy (COM(2020)605 final), the Commission observes thatelectronic evidence is needed in about 85 per cent of investigations concerning serious
crime.

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LIMITEENOn the one hand, judicial authorities and investigators are able to use types of electronic data that
did not exist before to identify individual behaviours, delivering key evidence in concrete cases.
The amount of data available is growing every day as more and more aspects of the life of citizens
are digitalised. On the other hand, this digitalisation has meant that judicial authorities andinvestigators are losing access to other types of information and evidence because an increasingly
important part of the commission or preparation of offences does not require movements or contacts
in the physical world. Digital services are increasingly abused by criminals to commit crimes suchas child sexual abuse, online rape, fraud, ransomware attacks or attacks on critical infrastructure. It
is easy for criminals to ‘go dark’ under these circumstances. In other words, criminals can commit
crimes in ways that law enforcement cannot detect and intercept.
This “going dark” phenomenon is caused by changes which reduce the possibilities for law
enforcement and judicial authorities to access existing electronic data. This includes, in particular,
the massive switch to internet-based communications (OTT services), coupled with the expanding
use of end-to-end encryption and with the difficulties to obtain cooperation of providers locatedabroad. Another key evolution is the Court of Justice case law on data retention. Other factors
include for example the impact of EU data protection legislation on access to Whois data, etc.
At operational level, the successful ANOM, EncroChat and SKY ECC related operations are casesin point, and not only with regard to how necessary access to communications data and the sharingof data can be in effectively fighting organised crime. They also offer a glimpse of how easy it has
become for criminals to contact each other to commit violent crimes, drug or arms trafficking, etc.
The results of these operations have also highlighted a small fraction of the extensive ongoing
criminal activities in the dark, that thrive on remaining undetected, and at the same time have adirect impact on the security of our societies.

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LIMITEENThe Swedish Presidency is committed to tackling the “going dark” phenomenon, to make sure that
judicial and law enforcement authorities have the necessary means to investigate and prosecute
crime and to ensure a high level of protection of fundamental rights. The debate aroundproportionality on issues related to access to communications data for law enforcement purposes isa difficult one. Prosecutors, judges and national and EU legislators have had to cope with theseissues for the past 20 years. It has implied difficult decisions on what the existing legal frameworkmeans in relation to new – and rapidly evolving – technologies and on what is the balance that newlegislation should achieve. In the Presidency’s view, the protection of fundamental rights must
include the ability to provide security for our citizens, effective means of investigating andprosecuting crime, and protecting and providing justice to victims of crime. These complex issues
highlight the need to discuss access to communications data as a necessary and proportionate
measure in a democratic society to safeguard the prevention, investigation, detection or prosecutionof criminal offences, as well as the protection of victims of crime and threats to public security.
As a first step in this conversation, Ministers of Home Affairs discussed these issues during theirinformal meeting in Stockholm on 26 January. Ministers of Justice were informed of the outcome ofthe discussions the next day.
The sector of access to electronic and internet communications must be approached as awholeA key factor in successfully tackling the challenges at hand is to approach the sector of access tocommunications data as a whole. The Council and its preparatory bodies have already worked on
many related issues, including data retention, end-to-end encryption, e-evidence and access toWhois data. However, the discussions have been mostly fragmented, focusing on each issue
separately.

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Approaching these issues more globally from a policy making perspective is necessary to highlightthe trend of “going dark” and to take it into account in policy choices to be made. For example,understanding the impact of limitations to data retention requires to be aware of the loss of data
resulting also from end-to-end encryption of internet-based communications.
Additionally, a more global approach can help in developing a better narrative in public debate andduring the negotiations of specific legislative instruments. With a view to allowing a better andmore complete narrative to develop, it is important to highlight the complexity of the issue and theneed for a nuanced analysis based on a global overview, rather than a sterile opposition between
privacy and security.
Approaching the sector of access to communications data as a whole could also help the Council totake the appropriate position, and in negotiating with the Parliament, on legislative files which are
not handled in the JHA structure but have an important impact on law enforcement and criminalproceedings. This is the case for the e-Privacy Regulation and for the Media Freedom Act, forwhich excellent coordination within Member States will be essential to make sure that the result issatisfactory also from the point of view of criminal justice.
The sector of access to electronic and internet communications has a strong criminal justicedimension
Many challenges arising from the “going dark” evolution require solutions in terms of technologicaltools, mutualisation of resources, specialisation of law enforcement authorities, forensic capacity,
dialogue between law enforcement authorities and the private sector, etc. Together with national
police authorities, Europol’s Cybercrime Center and Innovation Lab plays a key role in this regard.
The work of ENLETS (European Network of Law Enforcement Technology Services) should also
be highlighted. When it comes to the Council’s preparatory bodies, COSI will tackle these aspects.

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LIMITEENOther aspects are related to criminal law and judicial cooperation in criminal matters. This isparticularly the case in several well identified files.
Extensive work on data retention has been done and continues in COPEN including analysis andexchange of views on ECJ case law, exchange of information on national evolutions, reflexions onpossible solutions at the EU level, etc.
The process on the so-called “e-evidence” file (which covers direct transmission to the service
provider of national decisions to access data related to internet communications in the course ofcriminal proceedings) has required intensive efforts. More than seven years after the issue wasraised in Council, the legislative framework is now being finalised. The Presidency is of the viewthat it will be important to maintain a close look at upcoming efforts to make sure that the new
instruments work in practice.
Regarding the international framework, COPEN will be consulted by the Commission with regard
to the negotiation of the EU-US agreement on e-evidence and the ongoing Cybercrime Convention
negotiations in the United Nations. COPEN had the same role for the negotiation of the Second
Additional Protocol to the Budapest Convention.
More generally, a number of horizontal criminal law issues common to the sector of access tocommunications data have arisen across various files. This includes procedural safeguards (such as
the need or not for a decision by a judge to access data), the need for and the wording of exclusion
or derogation clauses in EU legal instruments so as to avoid a negative impact on the prosecution ofcriminal offences, jurisdiction and territoriality issues, etc.
It is also clear that the Court of Justice is more and more involved in the field of access tocommunications data and that its case law is likely to cover more and more aspects of criminalprocedure. This is apparent already from the case law on data retention. In that regard, it isinteresting to note that, in the absence of specific secondary legislation the ECJ is entering more andmore into the compatibility of specific aspects of procedural criminal law (including on theindependence of judicial authorities or admissibility of evidence) with the Charter based on aDirective adopted as part of the development of the internal market.

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LIMITEENThe recent request for a preliminary ruling (C-670/22) brought to the ECJ on the basis of theinterpretation of the Directive on the European Investigation Order concerning EncroChat also
demonstrates the expanding involvement of the Court in issues related to access to communications
data.
Further, access to communications data is an essential part of the work of the European Judicial
Cybercrime Network (EJCN). Eurojust is also very active in the field. Prosecutors in the EJCN andat Eurojust play a key role not only in making judicial cooperation in relation to access tocommunications data work in practice, but also in identifying new common challenges arising at
national level and sharing best practices.
Next steps
At the informal meeting of Ministers of Home Affairs in Stockholm, the idea of establishing a newforum, gathering all relevant actors, to jointly take the issue of access to data forward, received
broad support. The task of defining the continuation of the work was subsequently given to COSI.
Discussions will proceed at the COSI meeting on 22 February.
With this said, it seems clear that, if the “going dark” challenge is to be approached as a whole,aspects related to judicial cooperation in criminal matters and issues within the competence ofCATS need to be taken into account. More specifically, it would be necessary to assess theremaining or newly emerging challenges that arise when it comes to access to data. In the view ofthe Presidency, it therefore seems appropriate to have a discussion on the issue of access tocommunications data for law enforcement purposes in CATS. The outcome of this discussion will
be useful for the next steps, including the coming discussions in COSI.

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LIMITEENQUESTIONS:–Do you share the view that, as part of a necessary multidisciplinary approach,
CATS should participate in identifying challenges and possible opportunities, inparticular when it comes to access to communications data? Do you agree thatCATS should keep a horizontal view focusing on aspects related to criminal
justice?

–Do you see aspects of access to communications data which should already beidentified as requiring attention from a criminal justice point of view, other thanthose already mentioned throughout the document (such as data retention, eevidence, end-to-end encryption and lawful interception, derogation clauses,
territoriality issues, etc) to be addressed in future discussions related to this “goingdark” challenge ?

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