Public consultation on improving cross-border
access to electronic evidence in criminal
matters
1 Fields marked with are mandatory.
*

1 litîOdLICtiOfl
Obstacles to accessing electronic evidence complicate criminal investigations and therefore affect
criminal justice in the digital ae. Criminal procedural measures to gather evidence as part of a criminal
investigation are usually national in scope. By contrast, obtaining electronic evidence freftuently has cross
border implications. Therefore, authorities have to rely on judicial cooperation mechanisms like mutual
legal assistance (MLA) or, within the EU, mutual recognition, on the direct cooperation of service
providers, or on direct access to obtain electronic information. All three channels raise different types of
issues affecting the investigations that may result in abandoned and unsuccessful cases and, ultimately,
in a less effective criminal justice.
In the perspective of improving access to electronic evidence in criminal investigations, the Commission
will assess the scope for horizontal or further sectorial action at EU level, while respecting the principle of
subsidiarity. The present public consultation is intended to feed this assessment without, however, either
prejudging any action by the European Union or prejudging the legal feasibility of an EU action with
regards to the limits of the Union’s competence.
-

About you
1 You are welcome to answer the questionnaire in any of the 24 official languages of the EU. Please let
us know in which language you are replying.
Encjlish

*2 You are replying
as an individual in your personal capacity
‘

*

in your professional capacity or on behalf of an organisation

11 Respondent’s first name

*12 Respondent’s last name

*

13 Name of the organisation
Ministry of Justice and Security

*14 Email address

*

15 What is the nature of your organisation?
0 Electronic communication service provider (e.g. telecommunications operators, transmission services
excluding broadcasting, etc.)

‘0’ Information society service provider (e.g. online services, cloud services, social networks, platforms, etc.)
Professional/business association
Government of a Member State or regional government

0 Law enforcement or judicial authority or public authority directly related to it (e.g. Ministry of Justice,
Ministry of Interior)
Other public authority/administration
EU institutions or agencies
-‘

Data protection authority
Academic/research institution
Lawfirm
Non-governmental organisation (NGO)
Other

*

17 Is your organisation included in the Transparency Register?
here
Why a transparency register

Yes
No
Not applicable
*

19 Place of establishment (main headquarters in case of multinational organisations)
0 Austria

() Belgium
Bulgaria
0 Croatia

0 Cyprus

2

Czech Republic
Denmark
Estonia
Finland
France
Germany

c: Greece
Hungary
Ireland
Italy
Latvia
Lithuania
CD Luxembourg

C) Malta
Netherlands
(J Poland
CD Portugal
Romania
CD Slovak Republic
Slovenia
Spain
Sweden
United Kingdom
Other
*21 Your contribution,
c.

‘j

:s f’ JLlC

ss t’ i: ur ‘s u

Requtation (EG)

N 1049/2001

CD can be published with your organisations information (1 consent the publication of all information in my
contribution in whole or in part inciuding the name of my organisation, and 1 declare that nothing within my response is unlawful or
would infringe the rights of any third party in a manner that would prevent publication)

can be published provided that your organisation remains anonymous (1 consent to the publication of any
information in my contribution in whole or in part (which may inciude quotes or opinions 1 express) provided that it is done
anonymously. 1 declare that nothing within my response is unlawful or would infringe the rights of any third party in a manner that
would prevent the publication.

Part II: General Questions and Current Situation in your country/entity
The usa of e/ectroni’ communi’atin too/s /g constantygrow/ng, so are the crirnia/ X’vestiations that

requ/re e/ectroni’ evidence
*22 Instead of using landline and meeting in person criminals use more and more other information society
services, such as social media, webmai), messaging services and apps to communicate. Do you consider
the increased use of information society services as an obstacle for effective criminal investigations?
Yes
No

3

C No opinion
23 In what sense? (Please use the space below)
500 characier() I77aXZ’rnlrn

*24 In cross-border cases law entorcement and judicial authorities regularly have to address ajudicial
authority of another State via a judicial cooperation mechanism such as mutual legal assistance or EU
mutual recognition mechanisms. Do you believe direct cross-border cooperation of law enforcement and
judicial authorities with digital service providers will bring an added value in criminal investigations?
9 Yes

C No
J) No opinion
25 In what sense? (Please use the space below)
500 characteis) maxirniin

*26 Should the European Commission propose measures to improve direct cooperation of EU law
enforcement and judicial authorities with digital service providers headquartered in third countries under
the condition that sufficient safeguards are in place to protect your fundamental rights?
Yes
(.) No
() No opinion
27 Which concerns would an EU nitiative in the area of electronic evidence raise in your view?
Very
relevant
Negative impact on (fundamental) rights
guaranteed by national law / EU Law

Relevant

Somewhat
relevant

Not
relevant

No
opinion

*

-

-

Loss of sovereignty for your Member
State

*

Risk that third countries impose similar
obligations to service providers to
disclose electronic evidence stored in the
EU (reciprocity)

*

-

30 Others!comments (please use the space below)
500 c/7aracter() ma-L»7um

4

There is an urgent need for irnprovernent of international operational
cooperation in addressing cyber crime and developing new approaches to
jurisdictional issues,

such as introducing cross border production orders for

data and direct access.

The current use of MIA and voluntary direct contact

with service providers does not rnatch the speed of digital data use and the
borderless nature of internet.

This leads to impunity,

especially for

technically competent criminals.

33 What do you expect to be achieved by an EU initiative on electronic evidence?
Ves

No

,

-

No
opinion

*Legalcertainty
*GLlarantees for the protection of fundamental rights in accordance with the
Charter of Fundamental Rights

-

*35 Besides the possibility to set up a legal framework for cases with cross-border dimension, do you think
the possible EU initiative should also cover purely domestic cases?

) Yes
ÇNo
No opinion

(‘

Part III. Access to e-evidence by a direct production request/order to
the digital service provider
58 A possible EU initiative could enable law enforcement authorities to directly request (through a
“production request”) or compel (“production order”) a service provider in another Member State to disciose
specific information about a user without having to go through a law enforcement or judicial authority in the
other Member State. Do you think a EU initiative should cover

Yes

No

No
opinion

*A direct production request to the service provider (voluntary
measure)?
A direct production order to the service provider (mandatory
measure)?
*

59 1f the European Commission proposes a legal Framework for direct cross-border requests to service
providers: how relevant are the following conditions for a possible cross-border instrument to access e
evidence (Please rate relevance below)?
very
relevant

relevant

somewhat
relevant

not
relevant

no
opinion

5

Direct access should only be given for a
limited number of offences (eg. depending
on the severity)

*

Condition that the act is punishable in
both countries (double criminality)

*

C)
-

-

-

*Specific safeguards to ensure

1

fundamental rights
Notification of another Member State
affected by this measure

*

Possibility for the notified Member State
to object the measure
*

*

--

Notification of the targeted person

0

*Legal remedies for the person affected

0

-

60 Others: Please specify in the space below
500 c/?aracter(s,) fna7f7)LJrn
Because of current experiences with the voluntary ctirect contacts with service
providers a production order is favored.

Because of the possible infringement

of funciarnentals rights prooortionalitv and subsidiarity of such orders are a
rerequisite.

Depending on the seriousness of infringement an order will be

applicable in more or in less offences

,

dual criminality will be needed.

Notifications may prove a useful mechanism.

61 Data is frequently categorised as non-content (subscriber information, e.g. the name of an e-mail
account holder and metadata, e.g. the time an e-mail was sent) or as content (e.g. the content of an e
mail). t the EU would establish a legal framework for the direct cross-border cooperation with service
providers, which data should be subject to it?:
All types of data (content
and non-content)

Ofily non-content data (suscriber
information and metadata)

Only data stored in the EU
Also data stored outside the EU

-

Depending on where the
service provider is located

-

62 1f the EU would establish a legal framework for the direct cross-border cooperation with service
providers, which types of service providers should be subject to t (multiple choice)?

*

i Electronic communication service providers (eg. telecommunications operators, transmission services
excluding broadcasting, etc.)

L Information society service providers (eg. online services, cloud services, social networks, platforms, etc.)
Other digital services providers relevant for investigation measures

6

63 1f you replied other, please specify in the space below
500 c/7aacter(’s) mairmirn
TOT,

2M

Part IV. Direct access to e-evidence through an information system
without any intermediary (e.g. a service provider) involved
There could be a situation eg. during a house search on the suspects premises where his/her laptop is
searched and access to his/her virtualised storage media (cloud-based) is possible directly from the
seized device, but t might be unclear where the data is stored or whether there is a cross border
dimension at all.
*

64 Do you see any need for a common EU framework for this situation?
Yes
(. No

C No opinion
65 It the European Commission should decide to propose a legal Framework for this situation, what
should the proposal provide?

Yes

No

*

Condition that the act is punishable in both countries (double criminality)

9

*

Specific safeguards to ensure fundamental rights

9

0

*

Notification of another Member State affected by this measure

*

Possibility for the notified Member State to object the measure

*

Notification of the targeted person

-

-

Legal remedies for the person affected (including challenging the admissibility
of evidence)

No
opinion

*

66 Others : Please specify in the space below
500 character4s) maximum
Direct access

— in mar.y instances in a covert form

many situations

—

is needeci,

since there are

in which tI-iere is no knowledge of the localisation of the data

and subsequentiy no “partner” to serve an Drder.

Because of the intrusiveness

such a measure is to be accornpanied by safeguards such as dual criminality,
respect for fundamental rights and possibly notifications.

One can imagine

ctifferent safeguards appiy depending on the intrusiveness of the measure.

Part V. International scope

7

Important servi’e pro viders are often headquarteredh’ thfrd countri’s, such as i’? the t/S. A/temat!ve4’ or
additIona/p the requesteci data may be stored/’7 a third country. These elemeats often hamper cn’rnaI
1’ivestigatiôns.
69 In your opinion, what could improve criminal investigations with a third country dimension? (Please
rate importance below)
very
important

important

somewhat
important

not
important

no
opinion

Conciusion of bilateral treaties with
main atfected third parties

*

*

Conciusion of multilateral treaties

*Developmentofan EU-wide
corn mon system/approach

70 Others : Please specify in the space below
500 c/7a/acter( ) rnaxhrnirn
The drafting of an additional protocol to the cybercrime convention
(muiitiiaterai)
states.

is an opportunity to improve the cooperation of EU MS and third

The intensity of the cooperation needed justifies also the pursuance of

possible bilateral treaties,
EU approach however

such as with the US,

A uniform,

poiiticallv backed

is the starting point.

Document upload and final comments

72 Should you wish to provide additional information (e.g. a short position paper) or raise specific points
not covered by the questionnaire, you can upload your additional document here.
Please note that the uploadec! document wi//be publIshed alongside your response to the questionnalre
whIs’h Is the essentIs/ frput to thIs open pubIi’ consu/tatkrn. The optiôna/ document will serve onv as
addllkrna/background reachg to better understandyourposil/on.
6O7beOcIl -ca88-4bab-89a4-96e3797b90c5/Sh ort_position_Paper_E_evidence.jIA_oct_201 7docx.docx

Contact
EC- E- EV 1 DE NC E-CONS ULTATlON@ec.europa.eu

8