Electronic Evidence after E-evidence Package’s Adoption: Challenges for Application and Unresolved Problems

On 12 July 2023, the European Union adopted the e-evidence package after five lengthy years of negotiating this controversial legislation. This package introduces a new model of cooperation to ensure transnational access to data for criminal investigations and prosecutions. The new model aims to offer a more efficient way of requesting data from service providers, often located in different countries, by allowing direct requests to Internet service providers active within the European Union. This approach will bypass the authorities in the Member States where the request is received. Providers will be required to designate at least one establishment or representative capable of receiving and responding to such requests promptly, and authorities will be permitted to send their requests directly to these designated entities. While the adoption of the e-evidence package marks a crucial step forward, its effectiveness, viability and practical application depend on several unresolved issues left to the Member States, or not addressed at all, and on reaching an agreement with the U.S. under the so-called CLOUD Act. This article aims to present the current state of play, examine these remaining issues and assess their impact on the final design of the system for accessing electronic evidence in the European Union.