Cross-border Access to Electronic Data Through Judicial Cooperation in Criminal Matters

CEPS Paper in Liberty and Security in Europe, No. 2018-07, November 2018

64 Pages Posted: 31 Dec 2018

See all articles by Marco Stefan

Marco Stefan

Centre for European Policy Studies (CEPS)

Gloria González Fuster

Vrije Universiteit Brussel (VUB); Universidad Internacional de la Rioja (UNIR)

Date Written: November 2018

Abstract

In the digital age, access to data sought in the framework of a criminal investigation often entails the exercise of prosecuting powers over individuals and material that fall under another jurisdiction.

Mutual legal assistance treaties, and the European Investigation Order allow for the lawful collection of electronic information in cross-border proceedings. These instruments rely on formal judicial cooperation between competent authorities in the different countries concerned by the investigative measure. By subjecting foreign actors’ requests for data to domestic independent judicial scrutiny, they guarantee that the information sought during an investigation is lawfully obtained and admissible in court.

At the same time, pressure is mounting within the EU and in the US to allow law enforcement authorities’ access to data outside existing judicial cooperation channels. Initiatives such as the European Commission’s proposals on electronic evidence and the CLOUD Act in the US foster a model of direct private–public cross-border cooperation under which service providers receive, assess and respond directly to a foreign law enforcement order to produce or preserve electronic information.

This paper scrutinises these recent EU and US initiatives in light of the fundamental rights standards, rule of law touchstones, and secondary norms that, in the EU legal system, must be observed to ensure the lawful collection and exchange of data for criminal justice purposes. A series of doubts are raised as to the Commission e-evidence proposal and the CLOUD Act’s compatibility with the legality, necessity and proportionality benchmarks provided under EU primary and secondary law.

Keywords: Criminal Investigation, EU, Judicial Cooperation, EU Legal System, Cross-Border Access to Electronic Data

Suggested Citation

Stefan, Marco and González Fuster, Gloria, Cross-border Access to Electronic Data Through Judicial Cooperation in Criminal Matters (November 2018). CEPS Paper in Liberty and Security in Europe, No. 2018-07, November 2018 . Available at SSRN: https://ssrn.com/abstract=3298705

Marco Stefan (Contact Author)

Centre for European Policy Studies (CEPS) ( email )

1 Place du Congres, 1000
Brussels, 1000
Belgium

Gloria González Fuster

Vrije Universiteit Brussel (VUB) ( email )

Pleinlaan 2
http://www.vub.ac.be/
Brussels, 1050
Belgium

Universidad Internacional de la Rioja (UNIR) ( email )

41 Gran Vía del Rey Juan Carlos I
La Rioja, 26002
Spain

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