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from Part I - Collecting Digital Evidence
Published online by Cambridge University Press: 02 January 2025
Chapter 3 explores how EU data protection law relates to public–private direct cooperation on digital evidence in criminal investigations. It asks if a neat prima facie separation of the GDPR and the LED matches the realities of private-to-public data transfers for criminal investigations, and if that legal framework is harmonious enough to warrant description as an EU data protection acquis. It distinguishes scenarios of formal (and informal) direct cooperation, viewed through the conceptual prism of data controllership. It applies that frame to the European Commission’s 2018 ‘e-Evidence package’, along with co-legislators’ competing visions, before looking at the final 2023 compromise text from a data protection perspective. It discusses how far CJEU case law illuminates theoretical blind spots and if the ongoing strengthening of enforcement powers is likely to herald not only greater legal certainty on the supply of digital evidence but also meaningful, workable data subject rights. Last, it reflects on the future place of EU data protection standards within the Council of Europe’s own new direct cooperation mechanism – the Second Additional Protocol to the Budapest Convention.
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