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NOTE: When this article goes live, it will be called Electronic evidence.
Electronic evidence, or e-evidence for short, consists of both digital evidence and analog forms of evidence. (Note: The linked article deals expressly with evidence considered "Part of the common law series." This article will emphasise developments in civil law, i.e. the civil law (legal_system) prevailing in Continental Europe.)
Access to electronic evidence
[edit]On February 2019 the European Commission recommended "engaging in two international negotiations on cross-border rules to obtain electronic evidence." [1]
The reason for the above development was given as due to the fact that "[i]n the offline world, authorities can request and obtain documents necessary to investigate a crime within their own country, but electronic evidence is stored online by service providers often based in a different country than [sic] the investigator, even if the crime is only in one country." The Commission then gave data supporting this decision. [2] Indeed, this is the reason for treating electronic evidence differently from the ways that other evidence is treated. Moreover, it may expedite convergence or some form of reconciliation between the two legal systems, at least as regards this use case.[3]
The most prominent case thus far has been Microsoft Corp. v. United States. Like many later cases, it involved both common and civil law jurisdictions.
An international group with a secretariat in Germany following inter alia the Council of Europe Cybercrime Convention has held 60-some meetings on this problem, most recently to address events in Brazil, Belgium and China in addition to the the Microsoft Ireland case. [4]
Separately from the above, a dedicated convention has been drafted. [5]
Further reading
[edit]Journals
- Digital Evidence and Electronic Signature Law Review (open source), http://journals.sas.ac.uk/deeslr/
- Journal of Digital Forensics, Security and Law (open source), https://commons.erau.edu/jdfsl/
Books
- Mason, Stephen and Daniel Seng, editors, Electronic Evidence (4th edition, Institute of Advanced Legal Studies for the SAS Humanities Digital Library, School of Advanced Study, University of London, 2017), http://ials.sas.ac.uk/digital/humanities-digital-library/observing-law-ials-open-book-service-law/electronic-evidence
- Paul, George L.: Foundations of Digital Evidence (American Bar Association, 2008)
- Scanlan, Daniel M.: Digital Evidence in Criminal Law (Thomson Reuters Canada Limited, 2011)
- Scheindlin Shira A. and The Sedona Conference (2016): Electronic Discovery and Digital Evidence in a Nutshell, Second Edition, West Academic Publishing, ISBN: 978 1 63459 748 7
Controversy
[edit]In the German weekly ZEIT dated 19th December 2018 the journalist Martin Klingst wrote "Nackt per Gesetz" (Naked by Law).
Klingst is appalled at the thought that an EU member state like Hungary might demand his data. Apparently Katharina Barley, German Federal Minister of Justice, agrees. Germany has protections against infringements on one's "informational self-determination" that are the strongest of any EU member state. The European Arrest Warrant is another example of the national limits placed on EU rights in some conditions.
Besides, Klingst sees a contradiction between having Internet companies be the guardians of right and wrong, whereas in a new draft German law they might be punished themselves. Would other MSs respect Germany's interpretation of who maintains confidentiality? he asks rhetorically.
E-evidence could become the first case, Klingst predicts, testing whether Germany's top judges have reserved enough room for the most basic protections.
See also
[edit]Microsoft Corp. v. United States
References
[edit]- ^ European Commission. "European Commission - Press release. Security Union: Commission recommends negotiating international rules for obtaining electronic evidence, Brussels, 5 February 2019". Retrieved 11 February 2019.
- ^ European Commission. "European Commission - Fact Sheet Questions and Answers: Mandate for the EU-U.S. cooperation on electronic evidence". Retrieved 11 February 2019.
- ^ Mason, Stephen (Autumn 2015). "Towards a global law of electronic evidence? An exploratory essay, citing Damaska, p.24". Amicus Curiae (103).
- ^ "Working paper on Standards for data protection and personal privacy in cross-border data requests for criminal law enforcement purposes 63rd meeting, 9-10 April 2018, Budapest (Hungary)" (PDF). Retrieved 11 January 2019.
- ^ "Draft Convention on Electronic Evidence".