GNI Submission – EC Cross-Border Evidence Consultation

On Friday, October 27, GNI submitted comments to the European Commission’s consultation on “improving cross-border access to electronic evidence in criminal matters,” emphasizing the importance of rights-respecting legal procedures to the maintenance of the open, interoperable Internet. The Commission’s consultation is part of an ongoing process whereby the European Union is considering how to improve law enforcement access to electronic evidence stored both within and outside the EU’s borders.

In our submission, which was developed by a dedicated working group and approved by the GNI Policy Committee, GNI noted that “any laws or policies enabling governments to lawfully request and access electronic evidence must be carefully designed to respect and protect internationally recognized human rights [and] should be developed with multi-stakeholder input.”

After explaining the particular relevance of the GNI Principles and pointing the Commission to GNI’s 2015 “Data Beyond Borders” report, GNI emphasized that “any new approaches… must respect and protect internationally-recognized human rights as set out in the International Covenant on Civil and Political Rights, including the principles of legality, necessity, and proportionality.”

In addition, we set out a non-exhaustive list of measures and commitments critical to the design and implementation of legal procedures for facilitating cross-border requests for electronic evidence by law enforcement authorities for criminal matters, including independent prior authorization of requests; focus on serious crimes; availability of meaningful redress; transparency regarding the number, type, and scope of the requests; and oversight and accountability to regularly ensure that requests meet such requirements.

Finally, the submission called on the EU to “ensure that countries outside of the EU would only get the benefit of any such process when their laws and practices meet international standards on human rights,” noting that whether a country’s laws and practices meet those standards must be determined through an objective, transparent, and credible process.