Cross-border Access to E-Evidence: Framing the Evidence. CEPS in Liberty and Security in Europe No. 2020-02, February 2020
2020
This paper aims at situating the policy discourse accompanying current European Union (EU) initiatives
on facilitating access by public authorities to data held by private companies, including in scenarios
regarded as crossing jurisdictional borders. More concretely, it contextualises these initiatives in light of
the absence of publicly available statistical information on some of the issues which are at the very core
of these matters.
Firstly, the paper presents the three main current developments, that is, the proposed ‘E-evidence
package’, the negotiation of an EU-United States (US) agreement facilitating access to e-evidence for
the purpose of judicial cooperation in criminal matters, and the participation of the EU in the
negotiations in the Council of Europe on a second additional protocol to the Cybercrime Convention,
analysing some of the recurrent messages associated with defending the necessity of all these different
measures. The Brief then reviews some of the information upon which are being constructed arguments
used to purport the need for these developments, by granting particular attention to the Impact
Assessment that accompanied the publication of the ‘E-evidence package’. Finally, it suggests that the
absence of statistical data might have implications for the assessment of the proportionality of eventual
legislative measures.
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