EUnited Against Crime: Improving Criminal Justice in European Union Cyberspace

In today’s ultra-connected world, much of our life occurs online. From watching TV series on Netflix, buying discounted airplane tickets on Kayak, to chatting with an old friend living in another continent on Facebook, it is hard to imagine a “disconnected” life. Despite the benefits generated by increased connectivity and more powerful processing tools, ICT systems have not only been employed to foster social and economic development. Terrorists and cybercriminals are increasingly using cyberspace to conduct their malfeasances. In June 2016, the Council of the European Union underlined the importance of improving the effectiveness of criminal justice in cyberspace. Using the Council conclusions as a starting point, the paper provides some “policy suggestions” for the ongoing debate taking place within EU institutions. In order to do so, the paper seeks to answer three main questions: What are the main challenges that EU member states face today when they collect e-evidence? How are they tackling these issues? Can an EU common framework provide solutions to solve these problems?

Paper prepared for the Istituto Affari Internazionali (IAI), November 2016. Presented at the seminar “EUNITED against Crime: Digital Evidence, Privacy and Security in the European Union” held in Brussels on 23 November 2016, organized by the Centre for European Policy Studies (CEPS) and IAI.

Roma, IAI, November 2016, 93 p.
Publication date: 

Preface, by Ferdinando Nelli Feroci
Executive summary

1. E-evidence and cross border data requests in France, by Vincent Joubert
1.1 Legal framework for digital evidence gathering within national jurisdiction
1.1.1 Legal framework for the collection of digital evidence in the context of criminal investigations under ordinary circumstances
1.1.2 Legal and judicial powers under the state of emergency regime
1.2 Legal framework for digital evidence gathering outside national jurisdictions
1.2.1 International mutual legal assistance agreements
1.2.2 Mutual legal assistance within the European Union

2. E-evidence and cross border data requests in Germany, by Anja Dahlmann
2.1 Obtaining digital evidence within German jurisdiction
2.1.1 Criminal prosecution
2.1.2 Cooperation between service providers and national authorities according to the German TKG
2.1.3 Boundaries to criminal prosecution
2.2 International cooperation and the obtainment of digital evidence
2.2.1 Cooperation with the United States
2.2.2 Cooperation and harmonization within the EU and the Council of Europe regarding rules to obtain digital evidence

3. E-evidence and cross border data requests in Italy, by Tommaso De Zan
3.1 The collection of digital evidence within Italian jurisdiction
3.1.1 Data retention and “compulsory services”
3.1.2 E-evidence in the Italian Code of Criminal Procedure
3.1.3 The Trojan horse and the issue of interceptions
3.1.4 Wrap-up
3.2 Cross border requests and international cooperation in e-evidence gathering
3.2.1 Cooperation with the USA
3.2.2 Cooperation with EU member states
3.2.3 A new legal measure to collect e-evidence abroad: article 234 bis
3.2.4 Wrap-up

4. E-evidence in the European Union, by Simona Autolitano
4.1 Judicial cooperation in criminal matters in the European Union
4.2 Judicial cooperation and “digital relations” with the United States

5. Improving criminal justice in European Union cyberspace
5.1 Analysis
5.2 Policy suggestions

List of acronyms

Research area