“E-evidence” negotiations: European Parliament must stand its grounds

The European Parliament and the Council have tremendous difficulties to agree on the issue of cross-border access to data by national law enforcement authorities. While the Parliament is trying to maintain as many fundamental rights safeguards as possible in the so-called “e-evidence” Regulation, the Council is stubbornly sticking to its position. If the Council’s vision overrides the Parliament, the legislation would seriously threaten free speech, privacy rights and the right to a fair trial. A coalition of digital rights, lawyers, journalists, media organisations and internet service providers associations are calling on the Council to show a greater spirit of cooperation and urge the Parliament to not excessively deviate from its original position.

By EDRi · May 4, 2022

The scandals about the Pegasus spyware have shown that nobody is free from abuses of surveillance powers: heads of governments, journalists, human rights defenders, political opponents – all have had their personal data accessed illegally. The Pegasus revelations questions the state of the rule of law in our European democracies. Something the European Parliament’s special inquiry committee will soon investigate as it is tasked to evaluate the scale of human rights violations.

The risks of surveillance abuses are an acute problem in the EU “e-evidence” proposals too. The e-evidence Directive and Regulation from the Commission would enable law enforcement authorities to directly order the access to any sort of data held by service providers in the EU. This system would bypass all previously established safeguards in the field of judicial cooperation, therefore attracting wide and repeated criticisms from stakeholders.

The proposals have been subject to lengthy and difficult negotiations between the two legislators. Because the European Parliament and the Council have such diverging positions, the text has been stalled in trilogue negotiations for 18 months. However, as compromises are slowly built, it does not look good for the rights of journalists, lawyers, doctors, social workers and individuals in general.

A good way forward? 

Following the deadlock in the trilogue negotiations, the Parliament’s Rapporteur, Ms Birgit Sippel, presented in December 2021 a compromise package to the Council in an attempt to pave the way towards an agreement. Unfortunately, as of her package and in order to strike a deal, the Rapporteur moved away from the Parliament’s position, notably by abandoning important procedural safeguards like the obligation to notify the executing State (where the service provider is established or legally represented) when seeking the identity of a person (so-called “subscriber data and other identifiers”).

After gathering feedback from all Member States, the French Presidency of the Council sent their comments on the Parliament’s package. The document reveals that the Member States are far from making the same efforts as the Rapporteur to work jointly towards a balanced compromise. This is very concerning for the continuation of the negotiations as the Council refuses to make any useful concessions on key issues such as the notification procedure, the residence criterion, grounds for refusal or legal remedies. 

Together with a coalition of 15 organisations and companies, European Digital Rights (EDRi) urges the European Parliament to maintain its original approach and not to cede to pressure from the Council. The rapporteur has already yielded on some key points of the Parliament’s report. More concessions would lead to disproportionate impact on the work of journalists, the protection of sensitive health data, the freedom to protest and the right to a fair trial as we recently showcased in four hypothetical but very possible scenarios involving cross-border access to personal data. Moving further in the direction of the Council’s position would also confront the providers with various legal uncertainties. 

The organisations call on the Council to give genuine and honest consideration to the Rapporteur’s package and to show a greater spirit of cooperation and compromise. Member States should ensure that the protection of fundamental rights does not take a backseat to efficiency in cross-border investigations. 

The coalition will continue to monitor the negotiations and provide both legislators with their input as the most crucial parts of the text from a fundamental rights and rule of law perspective are debated.

Chloé Berthélémy

Chloé Berthélémy

Policy Advisor

Twitter: @ChloBemy