Cross-border acquisition of digital data in criminal proceedings. State of play and measures taken by the European Union and the Council of Europe

Abstract

The rapid development of technology has equipped us with a wide range of devices that accompany us in our daily lives. Each of these devices leaves behind a specific digital footprint, taking the form of digital data. This makes it possible to determine, for example, our location, how long we use the device or what content we download, store or transmit using our device. All of this data can then be used as evidence in criminal proceedings, which has become increasingly common in recent years. This does not only apply to crimes committed entirely via ICT networks, but also to more traditional crimes where traces are left behind in digital form. However, digital data is far different in nature from the evidence traditionally used in criminal proceedings. Prompt action by the authorities is essential to be able to obtain them and protect them from destruction or modification, even more so than for other sources of evidence. Existing methods of obtaining such data, especially cross-border acquisition, do not take into account the specific nature of digital data, as they are too time-consuming. In addition, existing cooperation frameworks are often fragmented and incomplete, which makes it all the more difficult to obtain such data efficiently. This often makes it difficult or even impossible for the authorities to achieve one of the basic objectives of criminal proceedings - identification and conviction of the perpetrator. Unfortunately, these issues are not widely discussed, despite their considerable importance for practice.

This article, due to the extensive and multifaceted nature of the subject matter discussed, cannot be treated as an exhaustive study of the issue. It is, however, a concise introduction to the problems related to the definition of digital data, methods of their cross-border acquisition and measures taken in order to improve the possibility of their acquisition by authorities conducting criminal proceedings.