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Date: April 29, 2024 Mon
Time: 11:09 pm
Time: 11:09 pm
Results for territorial sovereignty
1 results foundAuthor: European Parliament. Durectorate General for Internal policies. Citizens' Rights and Constitutional Affairs Title: An Assessment of the Commission's Proposals on Electronic Evidence Summary: EXECUTIVE SUMMARY Background Internet-based information and communication systems (e-mail, social media, messaging apps, cloud computing systems) have become integral part of everyday life. Accordingly, access to electronic data processed and stored by service providers has increasingly gained in importance in criminal investigations. As provider data is often stored on and moved between servers located in several jurisdictions, access to such data usually requires a request for mutual legal assistance (MLA). The traditional framework of international cooperation in criminal matters, however, bears the risk that the data may have been deleted or transferred before the requested state decides to take action. As an alternative to MLA proceedings, a practice of direct cooperation requests to service providers has emerged. This practice, however, relies upon the provider's willingness to cooperate and, thus, does not ensure effective and equal access to the relevant data. In order to meet these challenges, the Commission proposed on 17 April 2018 new rules on cross-border access to electronic evidence, namely a regulation on European Production and Preservation Orders for electronic evidence in criminal proceedings and a directive laying down harmonized rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings. By these proposals, the Commission responds to the Council’s and the European Parliament’s calls for a common EU approach in this field. Aim The aim of this study is to assess whether the new rules proposed by the Commission provide an adequate and feasible framework for cross-border access to provider data. To that end, the study shall analyse the added value and shortcomings of the Commission’s proposal and assess the legal implications of the transnational disclosure of provider data, with a special focus on the disparities of national legal systems and recent developments concerning access to evidence stored in other jurisdictions, the legal challenges as regards territorial sovereignty and fundamental rights protection as well as the possibilities offered by Mutual Legal Assistance agreements and mutual recognition instruments. Findings The international framework of cross-border access to provider data mainly relies on MLA proceedings. In the EU, the European Investigation Order has significantly facilitated cross-border cooperation by streamlining the procedure and reducing cooperation obstacles, but still requires an intervention of the MS where the investigative measure shall be executed. In contrast, the Commission’s proposal will create new instruments for direct and mandatory cross-border cooperation, namely the European Production Order (EPOC) and the European Preservation Order (EPOC-PR). The orders are addressed to the legal representative to be designated by any service provider offering its services in the Union. The role of the formerly executing MS is limited to the enforcement of the order if the addressee does not comply with its obligations. The added value of the new cooperation regime lies in providing quick and effective cross-border access to provider data. On the other hand, the Commission’s proposal suffers from major shortcomings: -The Commission’s proposal extends enforcement jurisdiction to service providers established and data stored in non-Member States and thereby compromises the functioning of international cooperation with third states and gives rise to legal uncertainty for both service providers and users. - Direct cooperation will affect the territorial sovereignty of the MS in which the service provider shall execute the EPOC or the EPOC-PR and will, thereby, prevent that MS from taking responsibility for an effective protection of fundamental rights within its territory. Instead, the protective function is shifted to the service provider and/or the competent authority of the issuing MS neither of which is in position to ensure adequate protection. - The proposed cooperation mechanism deprives the individual of the protection provided by the traditional framework of international cooperation by abolishing traditional cooperation obstacles (for instance the double criminality requirement). Most of all, the proposal establishes an obligation to produce content data and transactional data even if the threshold set out by the law of the enforcing MS is not met (serious offence, catalogue offence). - As a consequence of the re-allocation of protective functions among the issuing and the enforcing MS, the individual whose data has been transmitted has no right to challenge the disclosure before a court of the enforcing MS. The service provider is provided with judicial remedies in the enforcing MS (enforcement proceedings) and in the issuing MS (review procedure in case of conflicting obligations), but may not challenge the legality of the order under the law of the issuing MS. - The Commission's proposal will not fully overcome the fragmentation and divergence of the MSs' laws on the preservation and production of electronic evidence. Production and preservation orders to domestic service providers will remain subject to national law and the proposed cooperation regime still significantly refers to the national laws of the issuing and enforcing MS. Recommendations To address the shortcomings of the new cooperation regime proposed by the Commission, this study recommends - to re-consider whether and to what extent recourse to the EIO might be an alternative option to the EPOC or the EPOC-PR (in particular with regard to the disclosure of content and transactional data); - to coordinate the legislative proposal with bi- and multilateral agreements and to limit unilateral enforcement jurisdiction by a connecting factor that is strictly construed and provides legal certainty for service providers and users; - to strengthen the role of the enforcing MS by a notification mechanism that enables its competent authority to take a decision on the execution of the order; - to maintain the high standards of protection established in the framework of cross-border cooperation in the AFSJ and provided by the law of the enforcing MS (in particular the thresholds for accessing content data and transactional data); - to ensure effective judicial review by providing legal remedies in both the issuing and the enforcing MS and enabling the service provider to challenge the legality of the EPOC / the EPOC-PR in the issuing MS. Details: Brussels, Belgium: European Parliament, Policy Department for Citizens' Rights and Constitutional Affairs, 2018. 58p. Source: Internet Resource: Accessed January 20, 2019 at: http://www.europarl.europa.eu/thinktank/en/document.html?reference=IPOL_STU(2018)604989 Year: 2018 Country: Europe URL: http://www.europarl.europa.eu/RegData/etudes/STUD/2018/604989/IPOL_STU(2018)604989_EN.pdf Shelf Number: 154281 Keywords: Communication Systems Criminal Investigations Cross-Border Electronic Evidence Enforcement Europe European Investigation Order European Preservation Order European Production Order Internet Mutual Legal Assistance Provider Data Rights State Sovereignty Territorial Sovereignty |