The Achilles Heel of E-Evidence Regulation (EU) 2023/1543

Fair Trials published in 2019 a consultation paper recommending key safeguards required to preserve the fundamental fair trial protections for accused persons in matters involving e-evidence. This paper was published in response to deliberations by the European Parliament regarding the Proposal for Regulations on European Production and Preservation Orders for electronic evidence in criminal matters. Following these discussions, and in 2023, Regulation (EU) 2023/1543 (the “E-Evidence Regulation”) was finally adopted.

Mutual Legal Assistance Treaties (MLATs) is an international judicial cooperation framework currently used to regulate access to cross-border data. The core difference between MLATs and the E-Evidence Regulation, is that national judicial or administrative bodies can now directly request a designated establishment or a legal representative of service providers, based in another EU Member State, to produce and to preserve data for the investigation or prosecution of a crime. One of the biggest critiques leveraged against these regulations is that it bypasses traditional judicial oversight mechanisms, turning ordinary service providers into judicial authorities.

While this remains one of the Regulations’ weaknesses, the Regulation designates ‘legal representatives’ as responsible for ensuing compliance with request orders. With this filtering function already implied in the Regulation, this article suggests that this function could be enhanced, designating a similar role to an official oversight body. Such an oversight body can be a secret weapon to the Regulations’ supposed Achilles Heel, even as e-evidence advances into unknown territories.

Establishing whether the E-Evidence Regulation passes the “safeguarding test”

In Fair Trials’ consultation paper, several tests are laid out in which to evaluate whether the E-Evidence Regulations provide sufficient safeguards for accused persons. The recommended tests are as follows:

• The Regulations should “contain a clear presumption of notification and limit law enforcement authorities’ power to use secrecy to an exceptional measure.” (Test 1)
• Prior judicial authorization should be required before the evidence is obtained to ensure that a “robust threshold of suspicion that the electronic data sought is relevant to the investigation”. (Test 2)
• That the suspect should have the right to seek appropriate legal remedies “where electronic data has been obtained illegally”. (Test 3)

Article 13 & Equity of Arms – Test 1

Article 13 provides that the issuing authority should, without undue delay, inform the person whose data is being requested “about the production of data” (art. 13(1)). This implies that the suspect should only be informed after the request has already been made, leaving no room to dispute the request itself from inception. Furthermore, the article allows for delays, restrictions or omissions on informing the person, by way of a mere “short justification” (art.13(2)). The Regulation doesn’t set clear limits on the duration or scope of the restrictions, save for “as long as” is necessary to preserve secrecy of the investigations. This calls into question whether the accused can adequately challenge the request or sufficiently prepare a defense without being disproportionally disadvantaged.

Article 5(2) & 6(2) & Probable Cause – Test 2

Provision 38 and 49 of the Preamble states that these orders should only be issued if it is necessary, proportionate, adequate and applicable to the case at hand. Article 5(2) and 6(2) reinforces that the orders shall be necessary for and proportionate to the purpose of the proceeding. While these Articles acknowledge the principles of proportionality, there is quite clearly no requisite judicial oversight bodies verifying the probable cause of the requests and mutual recognition in these cases cannot be relied upon since there is no underlying trust outside of MLATs.

Article 18 & Remedies – Test 3

Article 18 requires that any person whose data has been requested has the right to effective remedies against that order (art. 18(1)). However, the regulations go on to state that the right to effective remedies shall be exercised before a court in the issuing State (art 18(2)). Limiting the remedies to only the issuing State means that the accused will have no remedies against the enforcing State’s establishment or service provider. This leaves a dangerous lacuna where the accused cannot take action against an enforcing State who has complied with an invalid order, which can commonly happen due to fear of sanctions for non-compliance (art. 15).

While it is clear that the E-Evidence Regulations do not have a total disregard for accused rights, the tests are not passed by 100% efficiently. There still seems to be a missing link which could be remedied by a proper oversight mechanism.

A Secret Weapon for a Foreboding Threat

Although designated legal representatives currently act as the first point of contact for issuing States and ensure compliance, an official oversight body can play an even greater role by ensuring adequate safeguards are respected before executing the requests. If all requests are filtered through this body, the aforementioned weaknesses can be mitigated. Before producing the data, the oversight body can:

• Mandate notification to the suspect
• Verify whether there is probably cause
• Verify the admissibility of the evidence requested

Usually, mutual recognition enables enforcing states to bypass these checks based on mutual trust. However, since these regulations are not based on MLATs, an official oversight body can perform these essential functions.

Whereas an official oversight mechanism can be the secret weapon that rescues the Regulations’ current weaknesses, it remains uncertain how effective this weapon will be in regulating the inevitable reality of AI-generated evidence. Since it is still unclear to what extent AI-generated evidence will fall within the material scope of the E-Evidence Regulation, perhaps the European Parliament should start thinking toward a more advanced regulatory framework in preparation for this foreboding threat to strike.

Article written by Angelica Vieira, Attorney and Fair Trials’ EIPAC member.