Status Quo Assessment and Analysis of Primary Challenges and Shortcomings. The Law Enforcement Perspective

Deliverable D6.2 ‘Status Quo Assessment and Analysis of Primary Challenges and Shortcomings’ presents a status quo assessment and analysis of primary challenges and shortcomings concerning the use of digital evidence, from a law enforcement point of view, in Europe and beyond. To this intent, the report commences with an analysis of different legal systems at international level and how their differences may impact international law enforcement cooperation. First, an overview is provided of the main legal principles in the most dominant legal systems, namely the civil law system and the common law system. Subsequently, an assessment of the civil law system and its rules of evidence within Europe is presented by taking a closer look at the French civil law system and a similar assessment is made with regard to the common law system and its rules of evidence in Europe, by studying the rules of evidence in England and Wales. Finally, these rules of evidence are briefly compared with one another to determine whether they could present barriers to international law enforcement cooperation.

Furthermore, specific focus is given to the use of encryption and anonymization tools as one of the main challenges in criminal investigations and forensic analyses. Since the circulation of the EVIDENCE questionnaire last year, an intense public debate has ensued regarding the implementation of encryption-by-default and encryption-by-design in products and services provided by some of the largest tech companies leading to the widespread adoption of encryption by the general public. Therefore, a more comprehensive assessment of the topic was deemed essential, starting with an overview of the background of the initial debate which took place in the 1990s, also known as the “crypto wars”. This is followed by a presentation of the current debate with all the events that have occurred since late 2014. Lastly, the challenges presented by encryption and anonymization tools in criminal investigations are addressed, particularly in light of recent cases involving law enforcement investigations into Tor hidden services and cryptocurrencies.

Law enforcement capabilities and cooperation in the field of digital evidence are, however, not only challenged by technical innovation, but also by legal frameworks that are increasingly lagging behind technical advances. Therefore, the next chapter is dedicated to studying recent and more long-standing examples of legal lacunae leaving LEAs to investigate and cooperate within fields of uncertainty. First, the impact of the annulment of the Data Retention Directive by the European Court of Justice is assessed, in particular with regard to national data retention legislation and other EU data retention measures. Then, trans border access to data will be addressed by looking at the status quo and proposed solutions as well as at recent case law on the matter, such as the Yahoo and Microsoft cases. Lastly, the chapter concludes with a brief analysis of the recent Safe Harbour ruling and the potential impact of this ruling on law enforcement activities.

The findings of this report complement those of the previous report (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’), presenting the current state of affairs with regard to the collection, preservation, analysis, exchange and presentation of digital evidence before court, from a law enforcement point of view, and will further feed into the report (Deliverable D6.3 ‘Identification of Best Practices and Guidelines to be Integrated into a Comprehensive European Framework’) on best practices and guidelines.