Identification of Best Practices and Guidelines to be Integrated into a Comprehensive European Framework

Deliverable D6.3 ‘Identification of Best Practices and Guidelines to be Integrated into a Comprehensive European Framework’ aims to present best practices and guidelines, identified from a law enforcement perspective, to be integrated into a comprehensive European Framework. To this intent an assessment is provided on how to continue efforts towards the further professionalization of the relatively young field of digital forensics. Digital forensic practitioners have expressed an interest for their field of expertise to reach a similar level of professionalism and recognition as, for instance, the field of DNA analysis. This would, however, require a reassessment of the potential regulation of digital forensics professions to ensure that practitioners meet a certain standard. Furthermore, as these practitioners often rely on automated digital forensic tools for the acquisition and analysis of digital evidence, these tools should ideally be subject to validation procedures to ensure that they are fit-for-purpose. Lastly, there are currently no universal standards applicable to digital forensic labs in particular, thus it is also worth considering the development of an accreditation procedure to ensure digital forensic labs meet certain pre-determined quality levels.

As law enforcement is not the sole actor within the digital evidence domain, the importance of “building bridges” between LEAs and other stakeholders, including the public, policymakers, the private sector and the judiciary cannot be understated. Therefore, collaboration between LEAs and these other stakeholders is also addressed. Particularly towards the public, that entrusts LEAs with the powers and resources to fulfil their mandate, LEAs should continue to expand their efforts in increasing transparency and accountability with regard to their activities and spending. By providing statistics and documented case examples of law enforcement activities and needs, LEAs can provide the evidence-basis for an informed public debate upon which policymakers can, in turn, base their decisions. Furthermore, LEAs are increasingly confronted with evidence that has been collected and analysed by others stakeholders, in particular private companies, other public sector entities and citizens. LEAs will need to continue developing best practices in recognition of the fact that trustful collaboration with other actors is of essence in this field. Finally, as the examined cases and the evidence collected by LEAs is aimed to be brought before court in order to prosecute wrongdoers, the technical competences of prosecutors and magistrates to understand the digital evidence process are also key. LEAs should aim to further strengthen their communication channels with those in the justice system, as this can contribute to enhancing the understanding of digital evidence within the judiciary, thereby potentially also alleviating LEAs from unnecessarily burdensome analysis requests.

In an increasingly globalized online environment, the collection and exchange of digital evidence is furthermore, hampered by outdated and lengthy mutual legal assistance practices no longer adapted to today’s realities. The need for modernization efforts in the field of international police and judicial cooperation are, therefore, also presented in this report. The challenges for EU cooperation are first assessed by providing an overview of EU regulatory efforts to facilitate the collection and exchange of evidence. Moreover, efforts undertaken to enhance law enforcement cooperation through joint international actions as a form of “MLA avoidance” are addressed and, lastly, potential solutions for expediting current MLA procedures are discussed.

Finally, the findings of this report on best practices further complement and build upon those of Deliverable D6.1 ‘Overview of the Existing Mechanisms and Procedures for the Collection, Preservation and Exchange of Electronic Evidence by Law Enforcement Agencies within the European Union and Beyond’ on the status quo regarding the handling of digital evidence and Deliverable D6.2 ‘Status Quo Assessment and Analysis of Primary Challenges and Shortcomings’ on law enforcement challenges.