Internet, e-evidences and international cooperation: the challenge of different paradigms

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by Bruno Calabrich, Federal circuit prosecutor (Brazil)


There is a crisis in the world today concerning e-evidences. Law enforcement authorities deeply need to access and analyze various kinds of electronic data for efficient investigations and criminal prosecutions. They need it not specifically for investigating and prosecuting so-called internet crimes: virtually any crime today can be committed via the internet; and even those which aren’t executed using the web, possibly can be elucidated by information stored on one or another node of the internet. The problem is that enforcement authorities not always, nor easily, can access these data[i], as the servers where they are stored are frequently located in a different country. Thus, international cooperation is frequently a barrier to overcome so that the e-evidence can be obtained in a valid and useful way. And, today, the differences around the world in the legal structures available for this task may not be helping a lot.

The most commonly known instruments for obtaining electronic data stored abroad are the MLATs – Mutual Legal Assistance Treaties –, agreements firmed between two countries for cooperating in exchanging information and evidences (not restricted to internet evidences) that will be used by authorities in investigations and formal accusations. The cooperation occurs from authority to authority, according to a bureaucratic procedure specified in each treaty, one requesting (where it’s needed) and the other (where it’s located) providing the data. But, in a fast-changing world, where crime and information are moving even faster, the MLATs are not showing to be the fastest and efficient way.  In Brazil, for instance, the percentage of success in the cooperation with the United States through its MLAT roughly reaches 20% of the cases. Brazil, US and other countries do not seem to be satisfied with that.
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Editorial of June 2016

 

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by João Marques, Lawyer and member of the 
Portuguese Data Protection National Commission

The right to be remembered – Directive 95/46/CE begins its twilight and makes way for the new General Data Protection Regulation (GDPR)

It was on May the 4th that the EU paradigm regarding personal data protection started to write its chapter in the common book of legal unification. As the Regulation (EU) 2016/679 [together with Directive (EU) 2016/680] finally got published in the Official Journal of the EU, a new era is jumpstarted. The first “victim” of the new paradigm is the old Directive 95/46/CE, which for the past 20 years has served European citizens honourably.

Although it faced a challenging task, Directive 95/46/EC was generally capable of protecting EU citizens against the predatory instincts of our world regarding their personal data. A suitable testament in this regard is the fact that the principles enshrined in Chapter 2 of the Directive have been, for the most part, kept almost unchanged. Lawful processing, purpose specification and limitation, data quality, fair processing and accountability remain as the bedrock of data protection under the new legal framework.

As ever, the CJEU case-law has been of paramount importance in the consolidation of a European perspective in which the citizen’s fundamental rights are at the forefront of the Union’s responsibilities, with the recent case C-362/14 (Schrems V. Data Protection Commissioner and Digital Rights Ireland Ltd) being yet another example of the approach for which the court is well known.

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