Mutual recognition by private actors in criminal justice? Service providers as gatekeepers of data and human rights obligations

A large number of criminal offences, not only cybercrime, is currently committed in a way that leaves digital traces which can serve as evidence. This data is in possession of service providers, often located abroad. The current model of cross-border gathering of evidence, based on mutual legal assistance, is considered too cumbersome and lengthy for the digital world. Similar reservations are made as regards the European Investigation Order. In response the EU Commission proposed the so-called e-evidence initiative. Based on mutual recognition, the new European Production Order would allow law enforcement in one Member State to request Internet service providers in another Member State to provide requested data in principle without involvement of the authorities of the latter state. This new system is a legal revolution at various levels, including its significant impact on the service providers offering services in the EU, redefining their duties towards law enforcement and influencing the relationship with their customers. This article examines the paradigm shift caused by that instrument and its consequences.