WORKING PAPER • VOL. 6 • N° 26 • September 2020
by Angela Aguinaldo and Paul De Hert
Online evidence has been indispensable in criminal matters but due to its transnational and volatile nature, there have been issues and challenges as regards access, transfer, and usage in criminal investigations and prosecutions. In recent years, practices have been established to overcome the hurdles of cross-border access to online evidence. One of these practices is direct cooperation between law enforcement authorities and data companies, the latter of which are mostly based in the US. While this cooperation has been less blatant and apparent in its earlier years due to the want of legal basis, law enforcement authorities have been less coy towards the practice more recently. The present contribution walks the reader through the recent developments on codifying the practice of direct cooperation between European law enforcement authorities and US data companies. These developments evince how law enforcement authorities are willingly and wittingly overlooking protective safeguards and issues that ought to be addressed and thoroughly discussed. By sanctioning a relationship of direct cooperation, not only are state interests affected, but likewise issues of trust, MLA rights, privacy and data protection are affected. There ought to be a thorough discussion on these issues and hopefully the lessons learned from the recent CJEU judgments and the German Federal Constitutional Court are taken into consideration.
Keywords: US CLOUD Act, European Union, Council of Europe, cross-border access to online evidence, online evidence, mutual legal assistance, data protection, privacy, Schrems 1, Schrems 2, data companies, direct cooperation, unilateralism, jurisdictional expansion
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