Stories reveal profound flaws in the “e-Evidence Regulation”

Despite revelations from the Pegasus scandal, which demonstrated the illegal surveillance practices used by states and the public outrage that followed, EU policymakers are about to give European law enforcement a similarly alarming data-gathering tool. The e-Evidence Regulation could essentially hurt free speech, privacy and the right to a fair trial. The current legislative proposal would give law enforcement authorities the power to request any sort of data directly from all service providers in the EU, neglecting all previously established protections in the field of judicial cooperation.

To warn of these dangers, EDRi and 13 civil rights organisations have come together to imagine what our collective futures would look like if the Regulation is adopted. By publishing this compendium of scenarios, the hope is to contribute to the current debate at European level. The organisations, representing a diverse group of stakeholders, are using these stories to urge the European Parliament and the Council to uphold a high level of fundamental rights safeguards during their negotiations.

Following a joint letter sent on 18 May 2021 highlighting their concerns, this compendium complements their recommendations by showcasing four different scenarios in which the e-Evidence Regulation would lead to serious fundamental rights harms. This type of analysis was already carried out by the German Ministry of Justice in May 2019 in a background paper.

The scenarios mentioned in this publication demonstrate the disproportionate impact of the future Regulation (1) on the work of journalists, (2) the protection of sensitive health data, (3) the freedom to protest in Member States with systemic rule of law issues, and (4) the right to a fair trial – if some of its proposals remain in the final text.

The scenarios clearly highlight the fundamental rights at stake, describe hypothetical but very possible situations involving cross-border access to personal data and explains the necessary safeguards advocated for to mitigate these fundamental rights harms. 

The co-authoring organisations have made the following recommendations in the publication and call on the European Parliament and Council to consider them in their decision-making related to the Regulation:

• Introduce a mandatory and automatic notification procedure for the executing State with suspensive effect, including (1) a duty to ensure all relevant immunities and privileges are properly considered and in case of violating orders, (2) an obligation to invoke grounds for refusal based on the EU Charter of Fundamental Rights;
• Give a clear definition of immunities and privileges which encompasses rules related to media freedom, freedom of information, professional secrecy and medical confidentiality;
• Involve the affected State in order to properly take into account the immunities and privileges when relevant;
• Provide clear information immediately to the person whose data is sought, unless otherwise authorised by a court or an independent administrative authority;
• Ensure access to effective remedies both in the issuing and executing States;
• Give early access of the case-file to the defence and enable the use of e-Evidence orders on behalf of a suspected or accused person;
• Provide the same level of protection for all types of data;
• Ensure that every order contains a summary of the underlying facts and a description of the offence;
• Give service providers the possibility to halt an order if orders are “manifestly abusive”, i.e. they are not restricted to a limited set of data, timeframe or the number of persons.

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