European Commission recommends negotiating international rules for obtaining electronic evidence

The European Commission has recommended engaging in two international negotiations on cross-border rules for obtaining electronic evidence. The Commission presented two negotiating mandates, one for negotiations with the United States and one on the Second Additional Protocol to the Council of Europe “Budapest” Convention on Cybercrime. By negotiating with the US, the Commission aims to ensure timely access to electronic evidence for law enforcement authorities in the EU and the US, as well as address legal conflicts by setting out definitions and types of data covered and clarifying legal obligations. By negotiating under the Budapest Convention in the name of the EU member states, the Commission aims to ensure the compatibility of the Second Additional Protocol with EU law in the area of cross-border access to electronic evidence; as well as enhance international cooperation through more effective mutual legal assistance and direct cooperation of law enforcement with service providers in other jurisdictions. Both negotiating mandates contain safeguards on data protection, privacy and procedural rights of individuals. The Commission has submitted the recommendations for negotiating mandates to the Council, which will consider whether to authorise the Commission to open negotiations.