Cross-Border Gathering of E-Evidence: Different Legal Frameworks in European Union and Council of Europe
Cross-Border Gathering of E-Evidence: Different Legal Frameworks in European Union and Council of Europe

Summary/Abstract: In a world of borders, the Internet has no borders. This is one of the reasons why the need for cross-border gathering of e-evidence is increasingly frequent. The article is aimed at identifying the legal instruments for cross-border collecting of e-evidence. For this purpose, the main legal sources of the European Union and the Council of Europe are analysed. Furthermore, the article is aimed at providing the reader with a roadmap for orientation in this matter. In this perspective, the following hypotheses are analysed: 1) The collection of publicly available e-evidence or for which there is consent to the collection and the relationship of these investigations with Article 32 of the Budapest Convention; 2) The collection of e-evidence with direct request to service providers based on the Second Additional Protocol to the Budapest Convention on Cybercrime of the Council of Europe, and the Regulation on European Production and Preservation Orders for electronic evidence in criminal matters; 3) The gathering of e-evidence on the basis of bilateral and/or multilateral agreements; 4) The gathering of e-evidence according to the European Investigation Order in criminal matters (EIO); and 5) The gathering of e-evidence in states where EIO does not apply.

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