On 28 February, the Council of Bars and Law Societies of Europe (CCBE) published its recommendations on the international rules for cross-border access to electronic evidence.
The CCBE adopted its recommendations in light of the Commission’s proposals for the regulation on European Production and Preservation Orders for e-evidence in criminal matters and the publication of two negotiating mandates (with the US and on the Second Additional Protocol to the Council of Europe ‘Budapest’ Convention on Cybercrime).
The proposed rules would allows the law enforcement authorities to compel international data transfers directly from the service providers and without the need to rely on a Mutual Legal Assistance Ttreaty (MLAT). This, according ot the CCBE, would circumvent the current process and its stringent judicial oversight, and increase the risk to the confidentiality of lawyer-client communications. Acknowledging the deficiencies of the current MLA procedures, the CCBE proposes their overhaul, for example by making them faster through digitisation and equipping national authorities to better respond to incoming requests.
Given the shortcomings of the e-evidence proposals, the CCBE is not convinced that these should be the bases for starting the negotiations with the US. This is especially because the Parliament has also voiced its concerns although has not yet adopted its position.
The Council of Bars and Law Societies of Europe (CCBE) represents the bars and law societies of 45 countries, and through them more than 1 million European lawyers.