On 2 April 2019, EDPS released an opinion on an agreement between the EU and US on cross-border access to electronic evidence in response to the European Commission’s adoption of a recommendation to start negotiations with the U.S. on electronic evidence access for criminal investigations. Buttarelli wrote he supports the Commission’s assessment that the EU “has an interest in a comprehensive agreement with the U.S., both from the perspective of protecting European rights and values such as privacy and personal data protection, and from the perspective of our own security interests.” Buttarelli added the Umbrella Agreement, which provides a minimum level of safeguards for data transferred to U.S. law enforcement, should be included in the negotiations.
Full text of the Opinion can be found here.
Background
On 17 April 2018, the Commission issued a package of two legislative proposals: a Proposal for a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters, and a Proposal for a Directive laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings. While work is ongoing at the European Parliament, the Council of the European Union (the Council) has reached a general approach on those two proposals.
On 5 February 2019, the Commission adopted two recommendations for Council Decisions: a Recommendation to authorise the opening of negotiations in view of an international agreement between the European Union (EU) and the United States of America (US) on cross-border access to electronic evidence for judicial cooperation in criminal matters, and a Recommendation to authorise the participation of the Commission on behalf of the EU in negotiations on a second Additional Protocol to the Council of Europe Convention on Cybercrime (CETS No. 185). The Annex to the Recommendation is of utmost importance since it lays down the recommended Council’s directives to the Commission to negotiate the agreement on behalf of the EU. The latter recommendation is the subject of a separate EDPS Opinion.
