More than half of criminal investigations require a cross-border request to access electronic evidence, be it SMS, email or in-app messages. This need has delayed the Police for years and has allowed many cybercriminals to have more room for maneuver to try to escape or slow down the action of Justice.
Five years since it was raised. Already in 2018, the European Commission raised the importance of putting an end to these bureaucratic obstacles that prevented the rapid pursuit of cybercriminals. More than five years have passed since then, but finally the European Council and the European Parliament have agreed to sign a new regulation.
The speed of cybercriminals against the speed of Justice. Cybercrime has no problem opening a server in one country, creating a profile from a fake account in another country, and making purchases online in another country with a different card. This ease of mobility that they have to operate in different markets contrasts with the difficulty that the Police have to unify evidence and that the judges of the different countries agree. And this difference in speeds was causing safety problems.
Electronic data is used in more than 85% of criminal investigations. Therefore, access to this material is essential to prosecute crimes. But it has not been until now when the law has finally been adapted.
Two new legal texts. The first is a ‘Regulation on European production and preservation orders for electronic evidence for the purposes of criminal prosecution’ and secondly a ‘Directive establishing harmonized rules for the appointment of legal representatives for the purpose of gathering evidence for legal proceedings’. penalties’.
What changes are there? The Regulation will allow the different police forces to access the stored data, regardless of where they are. Always within the member states of the European Union. The service provider will have to respond within 10 days or 8 hours if it is an urgent case. Failure to do so could result in the company being penalized up to 2% of its total annual worldwide turnover.
“With this agreement we respond to an essential request from our judicial authorities. The new rules will allow judges and prosecutors to quickly access the evidence they need, regardless of where it is stored, before it disappears”, explained Gunnar Strömmer, Minister of Justice of Sweden.
Not for any type of crime. This ease of data transfer has a limitation. It is true that they will be able to cover any category of data, including data on subscribers, traffic and content. But it will be for crimes of some importance.
They may only be requested for offenses punishable in the issuing country with a maximum sentence of at least 3 years or for specific offenses related to cybercrime, child pornography, counterfeiting of non-cash means of payment or terrorism.
A complex legal maze. The process has taken five years because many complex elements are involved. On the one hand, the possible incompatibilities between the different countries, in an aspect as sensitive as the prosecution of crimes. The data of the persecuted is also at stake, which despite having committed a possible crime must also be well managed.
The changes will be applied through a Regulation and a Directive, the legal text of which can already be consulted here and here. The prosecution of cybercrime is a delicate matter, but the different countries of the European Union have taken a necessary step today. We will see to what extent it is effective and if it does not generate additional legal complications that could lead to a loss of rights.
In Xataka | Hackers, the dark web and the business of cybercrime with Tamara Hueso
