2024 ISPAwards winner Erica Compagnone receives her award from Henri-Jean Pollet, President of ISPA Belgium.

The new European cooperation system for the exchange of electronic evidence in criminal matters: a balance between the general interest of justice and the fundamental rights to privacy and data protection.

The advent of cyberspace has brought several changes in everyday life as well as in the investigation and prosecution of crimes. In the criminal law field, these new technologies have the potential to provide important digital traces which play an ever-growing role in criminal proceedings. However, while digitization provides more effective and faster tools for detecting criminals, gathering electronic evidence can be a complex process, as it often involves obtaining data from multiple sources, dealing with encryption or other security measures, and ensuring that the data is admissible in court. Confronted with the inefficiency of existing legal frameworks, which were inadequate for addressing the challenges of the new digital age due to lengthy procedures and the potential risk to the fundamental rights of involved parties, the European Commission proposed the e-Evidence Package in 2018. This initiative includes a Regulation and a Directive aimed at establishing a model for direct collaboration between public authorities and private service providers.

In a comparative perspective with existing legal instruments and in light of the jurisprudence of the CJEU and the ECtHR, it was important to assess whether an instrument that prioritizes efficiency and law enforcement interests above fundamental rights could weaken the level of protection guaranteed to the fundamental rights to privacy and protection of personal data.

Starting from the new categorization of data proposed by the European Commission, the study explored the divergences, the temporary innovative character of the draft Regulation, and the European legislator’s change in the final text. It assessed to what extent the European legislation could cope with the new technological and judicial reality and how far a common transnational cooperation mechanism may be the most desirable alternative. The e-Evidence Package, in fact, envisages a mechanism that is very well-data driven to ensure an effective direct cooperation system with a comprehensive set of safeguards of individuals’ fundamental rights to privacy and data protection, depending on the sensitiveness of the data collected. However, since the most relevant and productive service providers are based outside the EU, the introduction of the e-Evidence Package may not be sufficient for all the potential scenarios. The EU should set coherent international rules for cooperation in criminal matters with the US and other democratic countries to ensure better reform in criminal law cooperation and its success. The study endorsed the idea that the e-Evidence Protocol of the Cybercrime Convention represents the best option for establishing this cooperation. In contrast, an EU-US cooperation based on a Cloud Act will easily turn to a US-centric view of data transfer, which may not adequately consider the expectations of other countries and will primarily serve the needs of US law enforcement agencies.