4th Edition of SIRIUS EU Digital Evidence Situation Report

Last December, Eurojust, Europol, and the European Judicial Network published the fourth SIRIUS report on cross-border access of EU law enforcement and judicial authorities to electronic evidence stored by Online Service Providers (OSPs) for criminal investigations.

Digital platforms are being increasingly used for criminal activities, making electronic datasets crucial for investigations. Due to the international nature of many criminal investigations, authorities often need to request data from Online Service Providers (OSPs) established in different countries. While policy developments are ongoing to modernize applicable legal instruments, authorities still rely on long judicial procedures or voluntary cooperation from OSPs to access such data.

The report shows that EU law enforcement officers face challenges in obtaining electronic evidence across borders, such as the length of judicial processes and the lack of standardized policies of OSPs. It also highlights the growing concern of law enforcement officers about the impact of Artificial Intelligence (AI) and Virtual/Augmented Reality (VR, AR) technologies on crime investigations.

From the perspective of judicial authorities, Mutual Legal Assistance (MLA) and European Investigation Orders (EIOs) are the main mechanisms for obtaining electronic evidence across borders. However, the length of the MLA process and the lack of a data retention framework remain pressing issues. Some EU Member States have implemented measures from the Second Additional Protocol to the Budapest Convention on Cybercrime in their domestic legislation, but there is still a need for EU-wide legislative efforts to regulate data retention for criminal procedures.

Most OSPs report significant improvements in engaging with EU competent authorities in the context of criminal investigations. There is a high level of awareness among EU law enforcement officers about existing processes, which leads to better quality requests and higher acceptance of online portals. However, OSPs also face challenges such as fake requests for data disclosure from unauthorized persons.

The recommendations suggested in the Report include creating or expanding the capacity of units acting as Single Point of Contact (SPoC) for cross-border data disclosure requests under voluntary cooperation, including training on cross-border access to electronic evidence in routine training programs, and ensuring the security of e-mail systems. Judicial authorities are advised to strengthen capacity on different modalities and specific procedures for requesting and obtaining electronic data, enhance mutual trust and exchange of expertise among EU judicial practitioners, and consider the impact of new products and services on electronic evidence. OSPs are advised to take measures to identify and prevent fake requests for data disclosure, engage in international events, and share policy updates with relevant teams.

Overall, the report emphasizes the need for continued efforts to address the challenges of cross-border data disclosure requests and ensure effective cooperation between EU Member States in criminal investigations.

Author(s): Livia DI BERNARDINI (AGENZIA PER LA PROMOZIONE DELLA RICERCA EUROPEA)

References:

Europol, SIRIUS EU Digital Evidence Situation Report 2022, https://www.europol.europa.eu/publications-events/publications/sirius-eu-digital-evidence-situation-report-2022

Eurojust, SIRIUS EU Digital Evidence Situation Report 2022, https://www.eurojust.europa.eu/publication/sirius-eu-digital-evidence-situation-report-2022