Electronic evidence

There is an international forensic standard issued by ISO with the International Electrical Commission ISO/IEC 27037.[3]

Late in 2019 Russia and China initiated a move to consider drafting a global cybercrime convention. Western democracies are conspicuously absent from the sponsoring parties.[4] Many non-governmental organizations (NGOs) have issued a protest letter claiming the Russian initiative would potentially infringe upon human rights.[5]

The Convention on Cybercrime (“Budapest Convention”) is "the first international treaty on crimes committed via the Internet".[6]

The CoE is currently drafting an update in the form of a second additional protocol to the Convention. 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.[7]

The draft protocol has proven quite controversial.[8] A joint civil society statement has been submitted.[9]

"The Cybercrime Convention Committee has extended the negotiations of the protocol to December 2020." [10] Meanwhile there are the guidelines from 2019. [11]

The European Parliament has been developing the so-called “e-evidence package”, which is summarized as "stops" in this legislative "train schedule".[12] The process is complex with both the Commission and Council producing parallel text drafts. In early 2020 there was a vote in LIBE committee combined with a mandate to begin trilogues. More specifically, the LIBE Committee's report was submitted to the Plenary of the Parliament for adoption. It is only after this step that the trilogues between the Parliament, the Council and the Commission could start in order to agree on a common text.[13] The rapporteur Birgit Sippel MEP has released her report proposing changes to the versions of the Commission and the Council. The report has given rise to both a summary [14] and a more detailed commentary analysing its provisions for their efficiency and protection of human rights.[15] Agreement has been reached in the Parliament on how to enter the trilogues. [16] The differences in the two versions prepared by the Council and Parliament respectively are shown in a couple of documents [17]

In February 2019, the European Commission recommended "engaging in two international negotiations on cross-border rules to obtain electronic evidence," one involving the USA and one on the CoE.[18] 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.[19]

The reason for the above development was given as due to the fact that "[i]n the offline world, authorities can request and obtain documents necessary to investigate a crime within their own country, but electronic evidence is stored online by service providers often based in a different country than [sic] the investigator, even if the crime is only in one country." The Commission then gave data supporting this decision.[20] Indeed, this is the reason for treating electronic evidence differently from the ways that other evidence is treated. Moreover, it may expedite convergence or some form of reconciliation between the world's two main legal systems, i.e. common law and civil law, at least as regards this use case.[21] Negotiations are set to begin.[22] However, there are questions as to how the two different systems might converge in a common agreement. [23]

Working documents are documents relating to the drafting of reports and opinions. These describe the proposed core instruments to handle cross-border requests: a European Production Order (EPOC) and a European Preservation Order (EPOC-PR).[24] The framework for those instruments is the European evidence warrant.[25]

Separately from the above, a dedicated convention has been drafted by a British barrister.[26]

The UK government announced that the new "UK-US Bilateral Data Access Agreement will dramatically speed up investigations and prosecutions by enabling law enforcement, with appropriate authorisation, to go directly to the tech companies to access data, rather than through governments, which can take years."

"It gives effect to the Crime (Overseas Production Orders) Act 2019, which received Royal Assent in February this year and was facilitated by the CLOUD Act in America, passed last year."

"The Agreement does not change anything about the way companies can use encryption and does not stop companies from encrypting data." On encryption, the US, UK and Australia are contacting Facebook directly [27]

The agreement means that UK officials can now apply to the US via the Crime (Overseas Production Orders) Act 2019.[28]

The basis for obtaining cross-border access is the Stored Communications Act as amended by the CLOUD Act. A new agreement with the UK was negotiated and it "will enter into force following a six-month Congressional review period mandated by the CLOUD Act, and the related review by UK’s Parliament." [29]