In a context of expanding digitalization of everyday life, electronic data also has an increasingly important role in a wide range of criminal areas. However, when it comes to cross-border data disclosure requests from authorities towards foreign-based Online Service Providers (OSPs), the existing legal framework is often considered not optimal. While policy-making and international negotiations are currently underway, the perspectives of judicial authorities, law enforcement and OSPs themselves can shed light on how data is collected for investigation and prosecution of crime in the EU, and what the main issues are.
EU judicial authorities in the field of electronic evidence face challenges related mainly with the retrieval of data in a timesensitive situation. The length of procedures to formally engage with non-EU OSPs was reported as the main issue (94% of respondents) whereas, conversly, the lack of data retention regimes in place against the extreme volatility of data complicates the scenario. Additionally, acquisition of data is often stalled due to the sharp increase of the challenges faced while establishing the jurisdiction/legal entity in charge of data requests.
EU law enforcement authorities highlighted the successful use of electronic evidence in many investigations in different crime areas. The surveys conducted present similar results in comparison with the previous year. For instance, the main issues in obtaining electronic evidence remains the same: the process required to obtain data via Mutual Legal Assistance (MLA) takes too long, and there is a lack of standardization in companies’ policies. There was an increase (+9.8%) in the number of officers that receive periodic trainings in relation to electronic evidence. Moreover, the results also show increasing relevance of Online Gaming Platforms to criminal investigations.
From the OSPs’ perspective, from 2018 to 2019 there was an increase of 14.3% in the volume of requests for disclosure of data, according to transparency reports of eight companies. Germany, France and the UK continue to be the countries with the highest volume, while Poland and Finland were the countries with the highest percentage increase in comparison with 2018. The volume of Emergency Disclosure Requests submitted by EU authorities increased by 49.7% from 2018 to 2019 and the overall success rate of requests increased from 65.9% to 68.4% in the same period.
A chapter of this report is dedicated to the role of Single Points of Contacts (SPoCs), which are units or group of officials specialized in cross-border access to electronic evidence in EU Member States. There is no unique formal definition of SPoCs and their tasks, but they can be divided in two types: SPoCs for centralization of requests and SPoCs for knowledge-sharing and support. In countries where SPoCs have been established, authorities and OSPs report increased efficiency in the process and faster response time in data disclosure requests.
Virginie Gastine Menou
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