Electronic evidence
Electronic evidence consists of these two sub-forms: This rather complex relationship can be depicted graphically as shown in this part of an EU-funded project on the topic embedded here at the right.
Chapter 10 of the associated 2018 book goes into more detail,[1] as does the website, http://www.evidenceproject.eu/categorization Electronic evidence can be abbreviated as e-evidence; this shorter term is gaining in acceptance in Continental Europe.
[8] Many non-governmental organizations (NGOs) have issued a protest letter claiming the Russian initiative would potentially infringe upon human rights.
An international group of national data protection authorities with a secretariat in Germany called the International Working Group on Data Protection in Telecommunications is monitoring the Council of Europe Cybercrime Convention holding 60-some meetings on the access problem, most recently to address events in Brazil, Belgium and China in addition to the Microsoft Ireland case.
[18] The European Commission (as the only body holding the right of initiative) has made two legislative proposals (a Directive on establishing a legal representative,[19] and a Regulation on access to evidence for criminal investigations).
The report has given rise to both a summary [21] and a more detailed commentary analysing its provisions for their efficiency and protection of human rights.
The EP Plenary then mandated the committee to take up negotiations with the Council, while the Commission formally played a neutral advisory role.
[26] In February 2019, the European Commission recommended "engaging in two international negotiations on cross-border rules to obtain electronic evidence," one involving the USA [27] and one at the CoE.
[28] Indeed, the USA/EU axis and the CoE are the scenes of work on these issues, as described and compared in a 2019 paper advocating a revamping of the Mutual legal assistance treaty, page 17.
Potential conflicts between the EU regime and the US CLOUD Act have led legal scholars Jennifer Daskal and Peter Swire to propose a US/EU agreement.
[39] Those authors have also assembled a set of FAQ seeking to address questions specifically that have arisen from the European Union in connection with the CLOUD Act.
[41] Europeans discussing ‘Co-operating in the Digital Age’ in the Internet Governance Forum have been critical of the EU's proposals, fearing that "companies and businesses [might] implement stronger filtering and blocking mechanisms in order to avoid sanctions or reputational damages.
[43] Some problems quite different from those in the Microsoft case alluded to above have been found and described in an article in the German weekly ZEIT dated 19 December 2018 with 167 comments on the proposed direct access tracks described above under "European Union"; the journalist Martin Klingst entitled it "Nackt per Gesetz" (Naked by Law, meaning exposed to foreign observation by domestic law).
Besides, Klingst sees a contradiction between having Internet companies be the guardians of right and wrong, whereas in a new draft German law they might be punished themselves.
E-evidence could become the first case, Klingst predicts, testing whether Germany's top judges have reserved enough room for the most basic protections.
