E-Evidence: Bundestag facilitates international access to data in the cloud

In digital criminal prosecution, national borders will become less of a barrier than ever before. On Thursday, the Bundestag paved the way for a profound reform of cross-border evidence gathering. With the votes of the CDU/CSU and SPD coalition, parliament passed the so-called Electronic Evidence Implementation and Enforcement Act. With this, the deputies intend to transpose the EU's E-Evidence package into national law belatedly. It is intended to enable investigators to access data directly from providers in other EU countries without having to go through the lengthy process of traditional mutual legal assistance requests.

The core of the new regulation is a system of European surrender and seizure orders. Authorized authorities will be able to directly request content data such as emails and chat messages, connection and location data including IP addresses, as well as identification information from service providers like Google, Meta, or Microsoft. This also applies if these providers are based in another member state.

The German government justifies this step with the reality of modern crime. As digital media play an increasingly dominant role in the planning and execution of criminal offenses, the justice system must also adapt its tools to the digital age. Where it previously took months to secure server data through diplomatic channels, clear deadlines and direct communication channels are now intended to ensure speed.

Opposition unanimously against

However, the acceleration of investigations is meeting with strong opposition from the opposition and civil rights advocates. The disapproval is primarily fueled by the concern that the rule of law standards are being sacrificed on the altar of European cooperation. The parliamentary groups of the Greens, The Left, and AfD therefore voted unanimously against the bill.

The central point of contention is the role of the judiciary in reviewing these orders. Opponents complained that legal protection for affected individuals has significant gaps. For example, public prosecutors are to assess whether reservations need to be asserted. Compulsory judicial involvement is not foreseen.

Bar associations consider this insufficient. They fear that downstream legal remedies will be effectively devalued: affected individuals often only learn of the access when the data has already been transmitted. Critics view the fact that the protection of those bound by professional secrecy is not fully guaranteed in the new enforcement procedure as a "capitulation to the regulatory power of the EU."

The coalition attempted to mitigate these concerns through last-minute changes and a motion for a resolution. Among other things, it is to be examined whether improved communication between enforcement authorities and providers can help to clarify grounds for refusal at an early stage.

Measures fall short

But for the opposition, these measures do not go far enough. The Greens unsuccessfully called for a strict alignment between national investigative powers and cross-border rights. They wanted to ensure that foreign authorities do not have more powers in Germany than the domestic police.

The Bundesrat already expressed an appetite for more digital data. According to the Bundesrat, the German government should advocate at the EU level for digital traces to be used not only for prosecution but also for the active prevention of criminal offenses in the future.

This initiative is likely to reignite the debate about data retention. For internet users, the decision means a turning point: the physical location of a server is becoming less important as a protective barrier for privacy against state access.

(mki)