Position Paper – DIGITALEUROPE’s response to the European Commission’s Progress Report on Improving Criminal Justice in Cyberspace

EXECUTIVE SUMMARY

DIGITALEUROPE as the voice of the digital technology industry in Europe welcomes the on-going leadership of the European Commission in addressing the complex problem of global access to electronic evidence (“eEvidence”). We continue to support the DG HOME-DG JUST task force effort to tackle the difficult jurisdictional and other challenges that must be resolved to develop a common approach in the EU.

As the European Commission noted in its December 2016 progress report, DIGITALEUROPE members remain key stakeholders in the continued discussions. We would like to reiterate that our members take their responsibility to maintain the safety, security, and privacy of millions of users in the EU seriously. Our members are also committed to being transparent in the way they execute these responsibilities.

DIGITALEUROPE members recognise that there are situations where they need to assist law enforcement agencies carrying out investigations into criminal activity. However, our members also acknowledge that the legal framework governing cross-border requests should be clarified and we are eager to continue to work with all relevant stakeholders on these important issues.

DIGITALEUROPE strongly supports the European Commission’s effort to find practical and workable solutions to improve cooperation with service providers within the existing framework. We believe that the creation of a single point of contact for law enforcement/judiciary requests, which has shown real improvements in countries where it exists, is an example of how cooperation can lead to workable solutions. An online tool containing all the applicable national laws as well as a description of who has authority to submit requests would also provide tangible improvements and contribute to a common understanding for all relevant stakeholders. DIGITALEUROPE members also strongly support coordinated trainings and ‘train-the-trainers’ programmes as well as other practical ways to achieve meaningful improvements in cooperation. Any potential solutions should in no way lead to a requirement for a service provider to reverse engineer, provide back doors or any other technology mandates to weaken the security of its service. Service providers must have the ability to continue to deploy the best possible encryption technologies to ensure the security, integrity and confidentiality of their services. Such measures would only lead to a weakening of data security and privacy of the entire digital ecosystem.

DIGITALEUROPE also supports the European Commission’s efforts to modernise international cooperation, in particular the efforts to improve EU-US cooperation on cross-border access to e-Evidence and the dedicated funding of such initiatives. DIGITALEUROPE members strongly believe that in order to avoid conflicting laws, there should be a robust, principled, and transparent framework to govern lawful requests for data across jurisdictions, such as improved mutual legal assistance treaty (“MLAT”) processes. Where the laws of one jurisdiction conflict with the laws of another, it is incumbent upon governments to work together to resolve such conflicts.

DIGITALEUROPE notes that the European Commission’s progress report highlighted the many divergent approaches that Member States have taken on this delicate issue, including how to determine the exercise of jurisdiction over service providers to access e-Evidence. We agree that these divergent approaches have led to conflicts of law throughout the EU and internationally. We are encouraged that the task force has focused on this specific issue. A common framework in the EU with robust safeguards protecting fundamental rights in line with the recent jurisprudence of the Court of Justice of the European Union (“CJEU”) and the due process required by the Court will better serve all stakeholders. While ultimately this problem must be resolved amongst governments, we nonetheless appreciate the opportunity to contribute to its resolution.