The European Commission published its E-Evidence Proposal in April 2018. Bitkom welcomes that it addresses the challenges of cross-border law enforcement requests and opens up the possibility of achieving better harmonization and legal certainty. We acknowledge that the combinations of processes and procedures nationally and internationally can make the process of seeking data lawfully confusing. We also acknowledge that the legal framework governing cross-border requests needs to be significantly improved. The current state of play leaves many service providers in legal uncertainty as to which data requests they have to fulfil. The proposed E-Evidence Regulation will create two new instruments: the European Production Order (EPO) and the European Preservation Orders (EPresO) which will enable law enforcement agencies (LEA) of one Member State to compel disclosure or preservation of evidence directly from the provider established or represented in a different Member State. As such, it is important that the Regulation emphasises important principles such a necessity, proportionality and a strong rule of law and fundamental rights protection. Also, the impact on the service providers, costs of the procedure and potential conflicts with other law regimes need detailed analyses. Furthermore, secure data transmissions and data protection should have the highest priority and be ensured by the technical implementation. Bitkom would like to offer some input on the Regulation that is part of the E-Evidence Proposal, its Articles and related Recitals at this time.
