EU Member States have given the European Commission a mandate to negotiate new international agreements for the cross-border exchange of evidence in criminal investigations.
The European Council accorded the Commission with mandates for negotiation both with the USA and on the forthcoming Second Additional Protocol to the Budapest Convention on Cybercrime, noting that criminal investigation increasingly relies on evidence which is based online, much of which may originate outside the EU. It was emphasised that, while cross-border evidence exchange can be crucial to conducting international criminal investigations, facilitating the flow of criminal evidence between countries must not come at the cost of citizens’ inherent rights to privacy and data protection.
Commissioner for the Security Union Julian King said: “For far too long, criminals and terrorists have been abusing modern technology to commit their crimes. By setting international standards to obtain access to electronic evidence, we are taking yet another step to close the space in which they operate by ensuring law enforcement authorities can more effectively investigate and prosecute them, with full regard for fundamental rights.”
The Commission’s negotiations with the US will aim to set out a common set of rules for the implementation of judicial orders for cross-border evidence exchange. The EU-US agreement, which must be reciprocal, should take into account conflicts between the differing legislative systems and should allow for the direct electronic sharing of evidence between service providers and judicial authorities. The Second Additional Protocol to the Budapest Convention, the world’s first international treaty aimed at addressing cybercrime, has been in negotiation since 2017; and the Commission is now authorised on behalf of the entire EU in negotiations.
Věra Jourová, Commissioner for Justice, Consumers and Gender Equality, said: “I welcome the strong support from Member States to the Commission approach for an EU-wide agreement with the United States. For most criminal investigations today it is necessary to obtain online evidence from service providers abroad. It is therefore crucial to address conflicts of law and establish clear common rules. Any agreement will of course have to guarantee at least the same strong fundamental rights safeguards as within the EU.”
Commissioner for Migration, Home Affairs and Citizenship Dimitris Avramopoulos said: “Criminals operate across borders and the evidence we need to investigate their crimes is often in other jurisdictions. Our law enforcement authorities need to be able to swiftly get access to this evidence. As of today, we can get to work in negotiating these frameworks with the United States and the Council of Europe.”