ETNO response to the European Commission public consultation on improving cross-border access to electronic evidence in criminal matters

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October 2017

ETNO welcomes this opportunity to comment on the public consultation “on improving cross-border access to electronic evidence in criminal matters” launched by the European Commission as part of the European Agenda on Security. Our Association indeed fully recognises the urgent need to cope with the increasing use of information society services (ISS), especially social media and over-the-top (OTT) messaging services, by criminals to communicate.

Although the consultation is primarily targeted at law enforcement authorities (LEAs) and individual service providers, ETNO would like to provide the Commission with its views to this crucial debate. European telecommunications operators have indeed a long-lasting experience in collaborating with LEAs in criminal investigations, by virtue of their legal obligations and based precisely on a strict compliance with EU and national rules.

Drawing on this experience, ETNO would like to stress two key messages:

• Law enforcement access to data held by providers of electronic communication network and services is already governed by a robust EU and national regulatory framework, which is more stringent than the one applicable to ISS and other digital service providers, which are currently excluded from the most part of this legal framework. We understand that this is precisely the issue that Commission is aiming to tackle. There is thus no need for additional legislation covering the telecoms sector. Any such addition would in fact expose telecom providers to legal uncertainty and potential litigation. Before introducing new rules for ISS and other providers, the expansion of the scope of current ECS-specific laws and policies to these players should be considered.
• Collaboration among LEAs through mutual assistance and international cooperation agreements is paramount to ensure the respect of the fundamental rights of all parties involved and should thus be the rule. The improvement of these legal mechanisms should be prioritised. Any new measure to facilitate cross-border access to electronic evidence (both within the EU and to third countries) should take full account of existing and upcoming EU regulation in the fields of electronic communications, data privacy, and judicial cooperation in criminal matters in order to ensure legal certainty. Fragmented laws and inconsistent protections of data belonging to individuals and organizations in different jurisdictions causes uncertainty and lack of trust in the digital economy.

This input does not address the important issues around data retention and encryption, since they are being addressed by the Commission and Member States in two different work streams. ETNO is following those discussions with great interest and will address them separately at a later stage.

Full text available here.