Today, Wednesday 5 December 2018, in view of the upcoming meeting of the Council of Justice and Home Affairs of the European Council (6-7 December), 18 organizations sent a letter to all the EU Member States, putting forward their vivid concerns regarding the approach suggested by the Austrian Presidency in the draft Regulation on European production and preservation orders for electronic evidence in criminal matters (“e-evidence”).

Among these organizations are EDRi, Electronic Frontier Foundation, the Council of Bars and Law Societies of Europe – CCBE, Access Now, Privacy International and many national digital rights organizations, including Homo Digitalis.

We believe that the solution proposed by the Austrian Presidency do not manage to adequately address important issues, which arise from the legislation in question. For example, the text:

– greatly reduces the possibility for enforcing authorities to refuse recognition and enforcement of an order on the basis of a violation of the Charter of Fundamental Rights;

– wrongly assumes non-content data is less sensitive than content data, contrary to case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) – notably the CJEU Tele 2 judgment (cf. para.99) and the ECtHR’s case Big Brother Watch and others v. UK (cf. para.355-356);

– contemplates the possibility to issue orders without court validation, disregarding what the CJEU has consistently ruled, including in its Tele 2 judgment (para. 120).

– does not provide legal certainty; and

– undermines the role of executing states, thereby undermining judicial cooperation.

Similar views have been expressed by the European Data Protection Board (EDPB), judges such as German Association of Judges, companies like Internet Service Providers, academia, Bar Associations, the Meijers Committee, among many others.

In the national level, Homo Digitalis submitted today its letter to the Greek Ministry of Justice (Protocol no. 4568/5.12.2018), expressing its concerns for these provisions.

You can find a copy of our letter in Greek here.

You can learn more on the action in the European level here.