Fair Trials Europe raises concerns on the Roadmap for effective and lawful access to data for law enforcement
The European Commission recently presented a Roadmap for effective and lawful access to data for law enforcement which would pave the way for EU law enforcement authorities to gain access to digital data. The roadmap focusses on six key areas: data retention, lawful interception, digital forensics, decryption, standardisation and AI solutions for law enforcement.
FTE agrees that it is essential to ensure that citizens can enjoy a high level of security in their daily life. It is also essential that law enforcement and judicial authorities have the necessary tools to track illicit activities, identify perpetrators, dismantle criminal networks and protect victims. However, any such efforts should be done in full compliance with existing human rights standards, including the Procedural Rights Directives.
The EncroChat and Sky ECC cases and the ruling of the CJEU (C‑670/22) highlight significant concerns regarding the methods by which data is obtained, shared, and used across the EU. These cases raised important questions about the legality and transparency of the actions taken by law enforcement agencies, particularly in relation to the interception of encrypted communications and cross-border data exchanges. In both instances, the use of data gathered led to concerns about the violation of individuals’ fundamental rights, such as the right to a fair trial and the protection of privacy. We must learn from these incidents to ensure that future cooperation between authorities does not come at the cost of fundamental rights.
Any proposed legislation must ensure that evidence gathering, retention and sharing is done in full transparency and subjected to judicial oversight which allows defendants to check and challenge the accuracy, authenticity, reliability and even the legality of the evidence used against them.
We hope and expect that any proposal for new, clear rules, will take this into account. The individuals whose fundamental freedoms are restricted in any way, should at least be given the possibility to challenge such restrictions before an independent judicial authority, whenever confronted with such restrictions. After all, the law should serve the individuals, forming the European Union, instead of the other way around.
FTE also stress that the design of AI systems and their deployment in criminal justice proceedings should be regulated to generate human rights compliant, non-discriminatory outcomes. AI systems should be sufficiently transparent, should enable effective independent scrutiny and adhere to a set of minimum standards and safeguards.
Moreover, FTE raises concerns regarding the increased involvement of private entities in the criminal justice system. The roadmap proposes enhanced cooperation between law enforcement authorities and private parties, including service providers, particularly in digital forensics. This collaboration extends to the establishment of a catalogue of data involving electronic communications providers. However, expanding the role of the private sector raises questions about accountability, as private companies operate under different levels of control and responsibility.
Fair Trials remains committed to closely following the next steps of the Roadmap and safeguarding fair trial rights, along with the fundamental principles that underpin them, such as the equality of arms.
Article written by Cristinel Buzantu, Fair Trials Europe’s Legal Consultant.
Article edited by Ángela Rodríguez, Fair Trials Europe’s Communication Officer.
