“E-evidence” negotiations: a call to protect media freedoms and democratic rights from abusive cross-border orders

Together with a coalition of 25 organisations and companies, European Digital Rights (EDRi) urges the European Parliament and the Council to uphold a high level of procedural safeguards in their negotiations on the so-called “e-evidence Regulation”.

Proposed in 2018 by the European Commission, the “e-evidence” Regulation would allow national judicial or administrative authorities to issue cross-border data access orders to receive personal data such as social media contents, emails, messages or “cloud” data held by internet companies located in another Member State. Currently, national judicial authorities receive and authorise foreign requests, in order to ensure that fundamental rights are protected. The “e-evidence” proposal would shortcut this sturdy EU judicial cooperation framework and its procedural safeguards on the pretext of speeding up cross-border criminal investigations.

While the European Parliament managed to secure several improvements to better protect people against law enforcement overreach, the Council’s position is by far the worst with a downgrade of safeguards and oversight measures.

The letter from the coalition comes at the time where both legislators are negotiating the most crucial parts of the text from a fundamental rights and rule of law perspective. The signatories emphasise that:

• European Production or Preservation Orders should always require the legal, systematic and meaningful involvement of the judicial authority from the Member State in which the online service provider is based and, where that is a different country, from the Member State in which the person whose data is being requested is a resident;
• Special protections given to lawyers, doctors and journalists are respected;
• The affected person is informed as soon as possible that the interference with their fundamental rights occurred to enable them to seek effective redress;
• The issuance of orders is subject to judicial authorisation;
• Data is exchanged via a secure system allowing for the verification of the authenticity of orders;

Only then can the future Regulation guarantee the protection of affected individuals against the risk of abusive data access requests and provide the legal certainty necessary for companies.