高端视野|吴沈括 Elena Scarpelli：欧盟数据主权与《电子证据条例》立法

全球数字治理前沿系列研究之：

欧盟数据主权与《电子证据条例》立法 

吴沈括

网络法治国际中心执行主任、博导

中国互联网协会研究中心副主任

Elena Scarpelli 

网络法治国际中心研究助理

SHORT SUMMARYThe E-Evidence is electronic evidence that consists in two sub-forms: analog and digital evidence. Today analog evidence is no longer prevalent but it still existent in some sound recordings. Instead, computer documents, emails, text and instant messages, transactions, images, and internet histories are examples of information that can be gathered from electronic devices and used as evidence.
The digital revolution is currently redefining all aspects of society, and crime is no exception. More and more criminals are turning to technology to plan and commit crimes. As a result, authorities are increasingly relying on electronic evidence to track and convict them. QUESTION PRESENTEDHowever, accessing electronic evidence can be time-consuming and complicated, especially if the data is stored abroad. Therefore, following requests from the European Council and the Council, the Commission proposed new rules on 17 April 2018 to make it easier and faster for authorities to access electronic evidence. BACKGROUND, PURPOSE AND VALUESOn 20 November 2017, the European Council adopts some conclusions about the Commission’s communication on strong cybersecurity for the EU. In these conclusions, the Council invites the Commission to present, in early 2018, a legislative proposal to improve cross-border access to electronic evidence and to submit a report on the progress made in implementing practical measures to improve cross-border access to electronic evidence. A legislative proposal composed of 25 articles.
Indeed, on 17 April 2018, the European Commission presents a package of legislative proposals on electronic evidence consisting of:· a regulation on European orders for the production and preservation of electronic evidence in criminal matters.· a directive establishing harmonized rules on the appointment of legal representatives for the purpose of obtaining evidence in criminal proceedings.
The European Production and Preservation of E-Evidence in Criminal Matters orders aim to provide a legal framework for law enforcement and judicial authorities to quickly access electronic evidence from other member states.
On May 20, 2018, it was again discussed in a trialogue that brought together the European Parliament, the Commission, and the Council. While some progress has been made on the technical details, the provision for notifying authorities in the country of execution remains an open question, according to a source close to the negotiations.
The European Commission proposed on 5 February 2019 to start international negotiations on cross-border access to electronic evidence, necessary to track down dangerous criminals and terrorists. Following up on the European Council Conclusions from November 2018, the Commission is presenting two sets of negotiating directives, one for negotiations with the United States and one for the Second Additional Protocol to the Council of Europe “Budapest” Convention on Cybercrime. Both negotiating directives, which now need to be approved by the Council, include strong privacy, data protection and privacy safeguards.
A spokeswoman of the Commission said: "The e-evidence proposal will provide the basis for a consistent approach within the EU and internationally. It will be faster for police and judicial authorities to obtain electronic evidence, while still ensuring that fundamental rights, including data privacy, are respected."
Commission proposed these new rules to make it easier and faster for law enforcement and prosecutors to obtain electronic evidence needed for investigations. New rules that should:· Guarantee strong protection of fundamental rights· Oblige service providers to designate a legal representative in EU· Provide legal certainty for businesses and service providers These rules provide for the creation of a European Production Order and Preservation Order:
The European Production Order allows a judicial authority in one EU country to obtain electronic evidence (such as emails, texts, or messages in apps) directly from a service provider, or its legal representative, in another EU country. The latter will be obliged to respond within 10 days, and within 6 hours in emergency cases (compared to a maximum of 120 days for the old European Investigation Order) The European Preservation Order allows a judicial authority in one EU country to request that a service provider, in another EU country retain specific data if their production is required for a particular investigation. CURRENT STATUS AND NEXT STEPSOn the one hand, we should not underestimate the effect that the pandemic has had on crimes, especially cybercrimes, which has increased due to the continued use of technological tools during the pandemic. And on the other hand, the necessary use of e-evidence in certain processes and the important diffusion of this evidence during these times.
Indeed, during the 2021 has been published the SIRIUS, European Union Digital Evidence Situation Report; the goal and purpose of this annual report, since the first year it was written (2018), has been to draw a picture of the status of access of EU Member States to electronic evidence and to mark the developments that have been made in this area. In 2021, the report goes beyond a comprehensive status update by including an assessment of the impact of the COVID-19 pandemic on the access of EU authorities to electronic evidence held by foreign-based online service providers in 2020. Cross-border access to digital evidence is critical to most investigations, but it became even more relevant during the pandemic, when there was an acceleration in the digitization of daily life. For example, in one case mentioned in the report involves just such a crime area on the rise due to the pandemic; law enforcement had to react quickly to prevent some phishing scams for digital signatures. There has been a major impact of the COVID-19 pandemic on electronic evidence requests. Criminals took advantage of the pandemic by engaging in cybercrime activities such as phishing campaigns or sales of counterfeit products. Nearly half of police officers surveyed said their need for electronic evidence increased during the pandemic, but about 25% reported that their ability to request electronic evidence decreased, due to the transition to remote work. Indeed, social distancing measures and closures have impacted the day-to-day work of law enforcement: 35% of respondents reported delays in proceedings caused by reduced capacity. However, some solutions, such as accepting electronic documents, have been welcomed by the judicial community as a positive outcome. In general, the increase in digitization has increased the need for electronic evidence, and authorities have had to adapt very quickly, which has led to an increased relevance of electronic evidence in criminal investigations. Eurojust President, Mr Ladislav Hamran stated: ‘This third joint Report reflects the complexity that results from a constantly evolving digital landscape and fragmented legal framework. It also shows how the global COVID-19 pandemic forced the EU’s judiciary to develop innovative approaches and adapt existing processes. We clearly see, as well, that our success in the fight against organized crime depends on the strength of our mutual partnerships. As long as we work together, we can strike the right balance between obtaining access to electronic evidence and upholding the fundamental rights and liberties of our citizens.’ CONCLUSIONOverall, the proposed European regulation on electronic evidence is always in development due to the constant changes in the world. Thus, one can only hope that the trialogue with the European Parliament will lead to the development of a regulation that is both balanced in terms of respect for safeguards, correctly reflects reality, and is also designed with a long-term perspective, so that crime in the digital age can be dealt with effectively and in a manner consistent with the rule of law.
— END —

网络法治国际中心 | 全球数字治理前沿系列：

网络法治国际中心 | 跨境数据治理前沿系列：

高端视野 | 吴沈括 邓立山：DEPA框架下的数据跨境规则研究
高端视野 | 吴沈括 邓立山：G20框架下的数据跨境规则研究
高端视野|吴沈括 邓立山：CPTPP框架下的数据跨境规则研究
高端视野|吴沈括 邓立山：RCEP框架下的数据跨境规则研究
高端视野|吴沈括 邓立山：APEC框架下关于数据跨境的CBPR规则研究

图文编辑：北京师范大学  黄诗亮