National justice ministers are pushing to create new powers for law enforcement authorities to intercept communication data in real time as part of their criminal investigations.
A number of ministers suggested on Monday (4 June) that they will lobby for major changes to a European Commission proposal that would allow police to immediately monitor communication data from emails and messages on digital apps.
The Commission proposed in March to give law enforcement authorities the power to demand technology companies hand over their users’ data within ten days, or six hours in emergencies, in order to collect so-called e-evidence for investigations.
The current version of the bill does not open the legal floodgates for authorities to intercept communication as it is exchanged. But national governments and the European Parliament must agree on a compromise version of the legislation before it can go into effect—and the Commission is coming under pressure to carve out even more options for police to access data from tech firms.
“I don’t think I need to describe the enormous value of having live data in particular cases such as terrorist cases, the abduction of children or other life threatening situations,” said Bulgarian Tsetska Tsacheva Dangovska, who chaired the meeting of EU justice ministers on Monday in Luxembourg.
Ministers from Belgium, Portugal, Cyprus, France, Greece, Italy, Estonia spoke out in favour of inserting a measure into the bill to allow authorities to intercept communication in real time.
Countries were divided over the suggestion to introduce more legal powers for police to access data. Several other politicians said they were wary of the idea and argued that a system allowing for real-time monitoring would be intrusive and bring up a range of new legal questions.
Others said the Commission’s experts should go back to the drawing board and spend more time analysing the details of such a change.
The Commission’s proposal creates a new, fast-track method for police to access data from technology companies regardless of what country it is stored in.
The legislation would help authorities to bypass current treaties between countries’ justice ministries. Prosecutors have complained that under that system, it takes too long to process requests and urgent investigations are held up.
But there will likely be fraught discussions ahead if negotiations tip in favour of the handful of justice ministers who want a broader proposal allowing for real time data access.
Some of the ministers who expressed reservations about that change said it would hold up the talks because legal experts will need more time to iron out details.
The EU executive also poured cold water over the ministers’ calls for expanding police powers as part of the e-evidence bill. The Commission is pushing negotiators to agree quickly on the draft legislation before the European Parliament elections next year.
“We from our side are really determined to get this done with this Parliament during this mandate and not to lose this window of opportunity and risk a delay of maybe 12 months while we regroup with a new Parliament,” Julian King, the Commissioner in charge of the EU security union, told justice ministers on Monday.
Vĕra Jourová, the EU justice Commissioner, said the proposal to include a measure allowing real time data interception is too new and has not gone through the Commission’s legal analysis. She said that raised concerns about how data interception would work in practice—and risked upsetting her strict schedule for negotiations.
King told ministers that the Commission is eager to wrap up talks over the file in part because of the 2019 election, but also because of pressure from the United States. Earlier this year, the US Congress approved the CLOUD Act, which gives American authorities the power to demand data held in other countries.
Jourová wanted US lawmakers to wait until the EU could broker a similar law at the same time and has been outspoken about her frustration over the US moving ahead alone with the legislation.
Now, she is focused on negotiating a separate arrangement to speed up police data requests between the EU and the US. She insists that the Commission must negotiate such a deal on behalf of the 27 EU countries as a way to prevent divisions within the bloc – although the UK is already in talks to seal its own one-on-one system with the US.
Commissions officials close to the proposal have pointed to the huge volume of police requests that EU countries send to the US because of the tech companies based there that hold Europeans’ data.
“A common approach gives us a strong negotiating position, ensures consistency with EU law including e-evidence and limits risks of fragmentation within the union,” the justice chief said.
Jourová told the ministers she would draw up a proposal to start those negotiations and bring it to them for approval soon.
Most justice ministers told Jourová they support her push to negotiate the arrangement with the US department of justice and want those talks to start as soon as possible. One hurdle standing in the way of those discussions is US authorities’ preference for deals with individual EU countries, which could be faster to agree.
“We would like to have an EU-US agreement rather than bilateral agreements even though the US would probably like to have bilateral agreements,” French Justice Minister Nicole Belloubet said.