European Federation of Journalists

Open letter: e-Evidence package lacks appropriate safeguards, EU Parliament must reject it

On June 13, the European Parliament will vote on the so-called “e-Evidence” package. There are serious concerns about how this proposal would undermine people’s fundamental rights and set an unwelcome precedent for cross-border access to people’s personal data in criminal investigations. The European Federation of Journalists (EFJ) joined civil society, doctors, lawyers and journalists’ associations, as well as internet service providers in calling on MEPs to reject the so-called “e-Evidence” package during the plenary vote on June 13. We consider that the proposed system of cross-border access to data in criminal matters would severely undermine fundamental rights.

Initially proposed by the European Commission in 2018, the “e-Evidence” Regulation and Directive cuts short judicial processes to ‘ease’ the process for law enforcement authorities to access personal data held by private online service providers established in other Member States.

The current procedure to access such personal data requires law enforcement to ask their counterparts in the country where a company is established for assistance in getting this data. The “e-Evidence” package would make it so that investigative authorities can send direct requests to companies in another country.

Through an open letter, digital rights groups, doctors, lawyers and journalists organisations and internet service providers urged Members of European Parliament (MEPs) to reconsider this proposal. It poses a threat to fundamental rights such as press and media freedoms, the right to privacy, the right to a fair trial and the duties of professional secrecy and confidentiality.

Over the years, the coalition worked to ensure that some essential safeguards rule of law and procedural rights are included in the proposal. While the Parliament’s draft was much improved, it did not last during negotiations with the Council of the European Union.

This regulation would also set a terrible precedent for the level of protection when law enforcement authorities across the world order access to people’s personal data from private entities in the EU.

The following elements of the “e-Evidence” Regulation are particularly concerning:

  • Lack of an effective notification system that was advocated by experts as a necessary safeguard in the procedure. Without it, the Regulation risks being abused to target – amongst others – journalists, human rights defenders, activists, political opponents and lawyers.

  • Failure to account for national contexts with weakened rule of law and heightened risks of political repression.

  • Poorly designed safeguards that, in practice, will not prevent illegitimate access to the communications and data of doctors, social workers and lawyers

  • Limited right to effective remedies by insufficiently regulated “gag orders”, weak rules for onward transfers and many barriers for individuals who defend themselves in front of a court

Digital rights, internet service providers and professional associations called on the European Parliament to reconsider this proposal, as it poses serious threats to fundamental rights, fails to provide legal certainty and acts as a poor benchmark for future international agreements with third countries.