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[CB20] Law Enforcement Access to Transborder Data: Global Reach of the Proposed EU e-Evidence Regulation by Anna Maria Osula

The increasingly sophisticated realm of crime involves challenges related to digital evidence, and employing such evidence in court, as well as actors, actions, or substantial effects that are wholly or in some part located or have been carried out in different jurisdictions. Access to relevant evidence is essential both for the conviction of criminals and for the protection of those wrongly accused. However, due to the decentralised nature of cyberspace, the targeted evidence may be residing in multiple jurisdictions at once or it may be impossible to identify the location at all at a given time (e.g. in the case of cloud computing).

This presentation examines a range of traditional and novel tools aimed at ensuring law enforcement agencies’ cross-border access to evidence such as the Mutual Legal Assistance framework, and the initiatives in the European Union (notably the e-Evidence proposal), Council of Europe (the Budapest Convention) and in the United States. The discussion then moves on to relevant principles of international law such as territorial sovereignty, and seeks to examine the possible global reach and effect on other regions of the EU e-Evidence proposal.

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[CB20] Law Enforcement Access to Transborder Data: Global Reach of the Proposed EU e-Evidence Regulation by Anna Maria Osula

  1. 1. Law Enforcement Access to Transborder Data: Global Reach of the Proposed EU e-Evidence Regulation Dr Anna-Maria Osula Guardtime / Tallinn University Of Technology / Masaryk University October 2020 Code Blue Conference
  2. 2. • This presentation is partly based on the following article: Dan Svantesson and Anna-Maria Osula, ”Unresolved jurisdictional issues in law enforcement access to data”, to be published as a chapter in the “Cambridge Handbook of Digital Evidence in Criminal Matters“, edited byVanessa Franssen and StanisławTosza, Cambridge University Press (2020/2021) and based on research that was supported by Masaryk University project no. CZ.02.1.01/0.0/0.0/16_019/0000822 (C4E) .
  3. 3. OUTLINE INTRODUCTION 1.Current means for transborder access 2.Legal bases for transborder access 3.International cooperation CONCLUSIONS
  5. 5. INTRODUCTION (I) • Increase in the use of ICT coupled with increase in malicious cyber incidents • Evidence needed for criminal proceedings is increasingly in digital form • “more than half of all investigations involve a cross-border request to access [electronic] evidence” (EC 2018) • Modern technologies are transforming investigations 5
  6. 6. INTRODUCTION (II) • Need effective investigation techniques & time-critical access to data • Evidence often located outside domestic territory • Ambiguous regulation regarding extraterritorial investigations • ‘Surveillance’ is outside the scope of this presentation 6
  7. 7. INTRODUCTION (III) • Examples of cases involving cyber crime and resulting in class action settlement: • Yahoo data intrusion 2012-2016 – 117 million USD • Equifax data intrusion ivolving 147 million people – 700 million USD 7
  9. 9. OPTIONS FOR ACCESSING DATA EXTRATERRITORIALLY • Mutual Legal AssistanceTreaties (MLATs) • Conventions, bilateral agreements • Through other networks of national entities • Mutual Legal Assistance (MLA) process heavily critiqued • “…inefficient in general, and with regard to obtaining digital evidence in particular…” (Council of Europe, 2012) 9
  10. 10. MLATS’ DOWNSIDES MAY INCLUDE • Time • ‘Message in a bottle’ • Not between all countries • Not up to date • Do not include necessary measures • The other Party decides not to cooperate • Etc. 10
  11. 11. Prosecutor X MoJ MFA Foreign MFA Foreign MoJ Foreign Prosecutor Y Slide from ‘International Cooperation in Fighting Cybercrime: the Future is Now’ by Mr Lodewijk Van Zwieten, Dutch National Prosecutor for Cybercrime & Mr Geert Schoorens, Federal Prosecutor’s Office of Belgium, CyCon 2015 MLATS’ MECHANISM
  12. 12. OTHER OPTIONS • Europol, Eurojust or Interpol • 24/7 point of contact networks • (In)formal LEA-LEA cooperation
  13. 13. CHALLENGES • Speed • Loss of (knowledge of) location • In some instances impossible to determine the location of the data • Growing ease of use and accessibility to technologies facilitating online anonymity • Off-shore heavens? • Inaccessible by using MLATs • How to proceed? • Possible inadmissibility in court
  15. 15. INTERNATIONAL AND DOMESTIC LAW • International law • International agreements (e.g. the Council of Europe Convention on Cybercrime, 2nd Additional Protocal; EU regulation) • International law (e.g. sovereignty) • Replacing “State-to-State” with “State-to-ISP” • Domestic law • E.g. US Cloud Act (2018) • requires internet service providers to hand over data to US LE agencies, no matter where that data is stored • bilateral agreements with “qualifying foreign governments”
  16. 16. EUROPEAN UNION (I) • E-Evidence initial proposal (still up to debate): • create a “European Production Order” which will allow a judicial authority in one Member State to request electronic evidence directly from a service provider offering services in the EU and established or represented in another Member State, regardless of the location of data, • SP will be obliged to respond within 10 days, and within 6 hours in cases of emergency; compared to up to 120 days for the existing European Investigation Order or an average of 10 months for a Mutual Legal Assistance procedure
  17. 17. EUROPEAN UNION (II) • offer a tool for preventing data being from being deleted.This will be done via a “European Preservation Order” which will allow to preserve specific data to enable the authority to request this information later via other means (MLA, a European Investigation Order or a European Production Order); • include strong safeguards and remedies. Both orders can only be issued in the framework of criminal proceedings and all criminal law procedural safeguards apply.
  18. 18. EUROPEAN UNION (II) • oblige service providers to designate a legal representative in the Union: to ensure that all service providers that offer services in the EU are subject to the same obligations, even if their headquarters are in a third country; • provide legal certainty for businesses and service providers: whereas today, law enforcement authorities often depend on the good will of service providers to hand them the evidence they need, in the future, applying the same rules for ordering the provision of electronic evidence will improve legal certainty for authorities and for service providers.
  20. 20. INTERNATIONAL COOPERATION • The European Commission will engage in two international negotiations on cross-border rules to obtain electronic evidence: • with the United States, and • on the Second Additional Protocol to the Council of Europe Budapest Convention on Cybercrime • Both mandates include specific safeguards on data protection, privacy and procedural rights of individuals. • Also examples of “data nationalism” / localisation
  21. 21. GLOBAL REACH OF THE PROPOSAL • Proposal still under review, multiple issues under debate (see e.g. MEP Birgit Sippel’s report) • Clear global reach due to targeting foreign-based service providers = not focusing on the (physical) location of the data • Good cooperation with the EU (Japan: GDPR example) could offer bases for expedited cooperation in criminal investigations • Possible model law
  22. 22. CHALLENGES • Challenges and possibilities for international partners • Role of SPs (responsibility of protecting human rights shifted to them?) • Safeguards, human rights (notification?, effective legal remedies) • Sovereignty, conflicts of law • Speed of investigations • New form of cooperation
  23. 23. OTHER GLOBAL TRENDS • State-to-state approaches and those ‘sidestepping’ the central role of states regarding the data stored on their territory • Traditional focus on the territoriality principle shifting to more operative mechanisms not necessarily requiring the prior authorisation of the other state • Conflicts and uncertainty between states may occur as States’ activities may be breaching both national and international law, and result in unsought escalation of retaliation measures
  24. 24. Conclusions THE END OF TERRITORIALITY?
  25. 25. CONCLUSIONS • States can not accept impunity for criminals • Time of change: emerging state practice & interpretation of traditional concepts of international law • Threshold for a breach of sovereignty • Exception for „Loss of location“ • Replacing “State-to-State” with “State-to-ISP” • Dissonance between actual state practice & regulation • More transparency of domestic approaches needed 25
  26. 26. References • Proposal for Regulation on cross-border access to e-Evidence content/EN/TXT/HTML/?uri=CELEX:52018PC0225&from=EN • Proposal for Directive on appointing a Legal Representative content/EN/TXT/HTML/?uri=CELEX:52018PC0226&from=EN • European Commission Impact Assessment (2018) https://eur- content/EN/TXT/PDF/?uri=CELEX:52018SC0118&from=EN • MEP Birgit Sipper draft report (2019) 642987_EN.pdf
  27. 27. Thank you! Q&A