LIBE Committee vote on the E-Evidence Regulation fails to account for the Rule of Law crisis in Europe

Deutsche Version

Yesterday, the European Parliament committee on Civil Liberties, Justice and Home Affairs adopted a compromise on the E-Evidence package. MEPs from the Greens/EFA group have voted to reject the report.

The E-Evidence draft regulation gives investigating authorities throughout Europe the power to request information directly from a service provider, no matter where in the EU. Service providers can be platforms such as Facebook, Microsoft 365, or TikTok, but also telecommunications providers such as Vodafone or Orange.

The text adopted yesterday does not require the authorities in the state in which the service provider is located to review the order before requested information are submitted to the authorities abroad.  While for transaction and content data, the addressed authority can raise objections within a short period of time, information that allows to identify a suspect (subscriber or IP address data) must be provided immediately.

An exception exists only for ongoing proceedings under Article 7 (infringement of fundamental values of the EU). Even then, this is the case only for the transaction and content data categories, not for identity information.

Sergey Lagodinsky, Greens/EFA shadow rapporteur in the Committee on Civil Liberties, Justice and Home Affairs, comments:


„I am stunned by the ease with which the same European Parliament that decries the catastrophic Rule of Law situation in a number of Member states, at the same time opens unchecked cross-border access to personal data for authorities from those states. The situation in a number of states demonstrates: Any bet on the unchecked goodwill of law enforcement from another member state is a risk for fundamental rights and the right to a fair trial. Procedural cross-border automatisms of such sort without a prior harmonisation of criminal laws throughout the EU puts the cart before the horse!

„The provision for ongoing Article 7 procedures does not reflect the variety of deficiencies across EU-countries. Grave rule of law deficiencies are not limited to the two countries currently affected by such procedures.

„Even more precariously, the proposal imposes on providers to decide whether an order is justified – private companies that are no legal experts and are not equipped to be the final guardians of fundamental rights. Efforts to introduce meaningful protection for journalists and their sources, for lawyers, civil society and opposition, have not been endorsed by the other groups. Against this background, I have recommended my group to vote against the compromise in the LIBE committee yesterday.


Background Information:
The European Commission proposal for a „Regulation on European Production and Preservation Orders for electronic evidence in criminal matters (E-Evidence)“, accompanied by the „Directive laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings“ had been brought forward already in April 2018. After the start of the new mandate in 2019, rapporteur Birgit Sippel (S&D) published her draft report in October 2019.

After several months of negotiations, interrupted by the pandemic between March and September, yesterday’s vote is expected to be the last step before the start of „trilogue“ negotiations with the Council of the European Union and Commission.

Resources:
[1] Overview on Mr. Lagodinsky’s website https://lagodinsky.de/topics/e-evidence/
[2] Overview on the European Parliament’s legislative observatory: https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2018/0108(COD)&l=en

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