Growing concerns on “e-evidence”: Council publishes its draft general approach

On 30 November 2018, the Council of the European Union published a draft text for its general approach on the proposal for a regulation on European Production and Preservation Orders in criminal matters – also known as “e-evidence”. The text is to be adopted by EU Member States, represented in the Council.

Already the initial proposals of the European Commission raised concerns regarding the fundamental right to privacy and protection of personal data, and the concerns are growing with this new text. For instance, the text reveals a severe deterioration of the few provisions that were meant to safeguard these fundamental rights (see, for example, deletions in recital 55 and articles 14.4.f and 14.5.e). Consequently, on 5 December 2018, 18 civil society organisations sent a letter urging EU Member States to oppose the adoption of the draft general approach and seriously reconsider the position of the Council.

You can read the letter here (pdf) and below:

Civil society urges Member States to seriously reconsider its draft position on law enforcement access to data or “e-evidence”

Dear Madam/Sir,

We are writing on behalf of 18 civil society organisations from across Europe and beyond. In view of the upcoming Council meeting regarding the draft Regulation on European Production and Preservation Orders, we urge you to oppose and seriously reconsider the draft general approach. We join the eight Member States that wrote to the European Commission and the Austrian Presidency asking to take into account input from stakeholders, including civil society.

The “compromises” presented by the Austrian Presidency fail to solve the fundamental concerns of the “e-evidence” proposals. For example, the text

• greatly reduces the possibility for enforcing authorities to refuse recognition and enforcement of an order on the basis of a violation of the Charter of Fundamental Rights;
• wrongly assumes non-content data is less sensitive than content data, contrary to case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) – notably the CJEU Tele 2 judgment (cf. para.99) and the ECtHR’s case Big Brother Watch and others v. UK (cf. para.355-356);
• contemplates the possibility to issue orders without court validation, disregarding what the CJEU has consistently ruled, including in its Tele 2 judgment (para. 120).
• does not provide legal certainty; and
• undermines the role of executing states, thereby undermining judicial cooperation.

Civil society is not alone in raising serious concerns. Similar views have been expressed by the European Data Protection Board (EDPB), judges such as German Association of Judges, companies like Internet Service Providers, academia, Bar Associations, the Meijers Committee, among many others.

We value the role of law enforcement to protect society and understand the need for law enforcement authorities to perform their duties effectively. However, efficiency should not be achieved at the expense of weakening fundamental rights, legal safeguards and judicial cooperation.

We thank you in advance for your time and consideration.

Kind regards,

European Digital Rights (EDRi)
Access Now
Centre for Democracy and Technology – CDT
Chaos Computer Club (Germany)
Council of Bars and Law Societies of Europe – CCBE
Dataskydd.net (Sweden)
Electronic Frontier Foundation – EFF
Electronic Frontier Norway – EFN (Norway)
epicentre.works (Austria)
Fair Trials
Förderverein Informationstechnik und Gesellschaft e. V. – FITUG (Germany)
Fundamental Rights European Experts Group – Free Group
Homo Digitalis (Greece)
IT-Pol (Denmark)
La Quadrature du Net (France)
Privacy International
Vrijschrift (Netherlands)
Xnet (Spain)

Civil society letter urging Member States to seriously reconsider its draft position on law enforcement access to data or “e-evidence”(05.12.2018)
https://edri.org/files/20181203_e-evidence_civilsocietyletter.pdf

Draft Council general approach on “e-evidence” (30.11.2018)
http://data.consilium.europa.eu/doc/document/ST-15020-2018-INIT/en/pdf

Letter of eight Member States to the European Commission and the Austrian Council Presidency on “e-evidence” (20.11.2018)
https://cdn.netzpolitik.org/wp-upload/2018/11/2018-11-20_Justizminister-Brief_E-Evidence1.pdf

EU “e-evidence” proposals turn service providers into judicial authorities (17.04.2018)
https://edri.org/eu-e-evidence-proposals-turn-service-providers-into-judicial-authorities/

Independent study reveals the pitfalls of “e-evidence” proposals (10.10.2018)
https://edri.org/eu-e-evidence-proposals-turn-service-providers-into-judicial-authorities/

(Contribution by Chloé Bérthélemy, EDRi intern, and Maryant Fernández Pérez, EDRi)