e-Evidence Cooperation in Criminal Matters from an EU Perspective

For several years there has been debate among EU Member States on the need to regulate cross-border access to electronic data used as evidence in criminal proceedings and how best to do this. The existing model of cooperation, based mainly on bilateral agreements, appears dysfunctional and is perceived by many as a barrier to effectively combatting rising cross-border crime.

In response, work has begun on several new legal mechanisms, most importantly the draft e-Evidence Regulation from the European Commission and a proposal to extend the Convention on Cybercrime – already in operation for almost 20 years – with an additional new protocol. At the same time, the United States has proposed its own model of cooperation, arising from the CLOUD Act. This article discusses the current state of play and the expected shape of future regulations – in terms of both facilitating law enforcement cooperation and clarifying obligations imposed on digital service providers.