By Chloé Berthélémy

After having tabled some 600 additional amendments, members of the European Parliament Committee on Civil Liberties (LIBE) are still discussing the conditions under which law enforcement authorities in the EU should access data for their criminal investigations in cross-border cases. One of the key areas of debate is the involvement of a second authority in the access process – usually the judicial authority in the State in which the online service provider is based (often called the “executing State”).

To prevent the misuse of this new cross-border data access instrument, LIBE Committee Rapporteur Birgit Sippel’s draft Report had angered the Commission by proposing that the executing State should receive, by default, the European Preservation or Production Order at the same time as the service provider. It should then have ten days to evaluate and possibly object to an Order by invoking one of the grounds for non-recognition or non-execution – including based on a breach of the EU Charter of Fundamental Rights.

What is more, the Sippel Report proposes that if it is clear from the early stages of the investigation that a suspected person does neither reside in the Member State that is seeking data access (the issuing State) nor in the executing State where the service provider is established, the judicial authorities of the State in which the person resides (the affected State) should also get the chance to intervene.

Notification as a fundamental element of EU judicial cooperation

The reasoning behind such a notification system is compelling: Entrusting one single authority to carry out the full legality and proportionality assessment for two or even three different jurisdictions (the issuing, the executing and the affected State) is careless at best. A national prosecutor or judge alone cannot possibly take into account all national security and defence interests, immunities and privileges and the legal framework of the other Member States, nor the special protections a suspected person may have in their capacity as a lawyer, doctor or journalist. This is especially relevant if the other Member States’ rules are different or even incompatible with the rules of the prosecutor’s own domestic investigation. The examination of a second judicial authority with a genuine possibility to review the Order is therefore of paramount importance to ensure its legality.

The LIBE Committee is currently discussing the details of this notification process. Some amendments that were tabled are unfortunately trying to undermine the protections that the notification requirement would bring. For example, some try to restrict the notification to Production Orders only (when data is transmitted directly), excluding all Preservation Orders (when the data is just frozen and needs to be acquired with a separate Order). Others try to limit notification to transactional data (aka metadata) or content data, alleging that subscriber data is somehow less sensitive and therefore needs less protection. Lastly, some propose that the notification does not have suspensive effects on the obligations of the service provider to respond to an order, meaning that if the notified State objects to an order and the service provider already gave out the data, it is too late.

The Parliament should uphold the basic principles of human rights law

If accepted, some of those amendments would bring the Parliament position dangerously close to the Council’s highly problematic weak notification model which does not provide any of the necessary safeguards it is supposed to have. To ensure the human rights compliance of the procedure, notifying the executing and the affected State should be mandatory for all types of data and Orders. Notifications should be simultaneously sent to the relevant judicial authority and the online service provider, and the latter should wait for a positive reaction from the former before executing the Order. The affected State should have the same grounds for refusal as the executing State, because it is best placed to protect its residents and their rights.

There seems to be a general consensus in the European Parliament about the involvement of a second judicial authority in the issuance of Orders. Meanwhile, the Commission grits its teeth and continues to pretend that mutual trust among EU Member States is all that is needed to protect people from law enforcement overreach. So far, the Commission seems to refuse to see the tremendous risks that its “e-evidence” proposal entails – especially in a context where some Member States are subjected to Article 7 proceedings which could lead to the suspension of some of their rights as Member States are suspended, because of endangered independence of their judicial systems and potential breaches of the rule of law. Mutual trust should not serve as an excuse to undermine individuals’ fundamental right to data protection and the basic principles of human rights law.

Cross-border access to data for law enforcement: Document pool
https://edri.org/cross-border-access-to-data-for-law-enforcement-document-pool/

“E-evidence”: Repairing the unrepairable (14.11.2019)
https://edri.org/e-evidence-repairing-the-unrepairable/

EU rushes into e-evidence negotiations without common position (19.06.2019)
https://edri.org/eu-rushes-into-e-evidence-negotiations-without-common-position/

Recommendations on cross-border access to data (25.04.2019)
https://edri.org/files/e-evidence/20190425-EDRi_PositionPaper_e-evidence_final.pdf

(Contribution by Chloé Berthélémy, EDRi)