International Journal on Criminology Volume 7, Number 1, Winter 2019/2020 | Page 14

New Perspectives in the Fight against Cyberattacks The establishment of joint investigation teams 14 must be made easier to ensure that they can be structured and deployed in a very short period of time. The possibility of having these teams work remotely must contribute to this. Setting up such teams could be encouraged among services that specialize in the fight against cybercrime. It would be useful for the European Investigation Order to be supplemented by the regulation proposal presented on December 21, 2016 on the mutual recognition of freezing and confiscation orders. 15 The adoption of this regulation could allow fraudulent financial transactions undertaken by cybercriminals to be followed and countered, thus depriving them of their gains. In the future, the European prosecutor 16 should have the capacity to combat cybercrime, which, in various forms, finds fertile ground in fraud affecting the EU’s financial interests. This is the context in which, on April 17, 2018, the European Commission presented, on the one hand, a proposal for a regulation 17 on European production and preservation orders for electronic evidence in criminal matters, and, on the other hand, a proposal for a directive 18 laying down harmonized rules on the appointment of legal representatives responsible for gathering evidence in criminal proceedings. These proposals aim to facilitate national judicial authorities’ access to electronic evidence, particularly by requiring the holders of such data to respond directly to the requesting authority. The regulation proposal, which implements the principle of mutual recognition, should allow the transmission of data to be ordered in less than ten days, or even in less than six hours in an emergency, when a requesting state makes such an application. It also provides for a preservation order to prevent the deletion of data, which obliges a service provider offering services in the EU and established or represented in another member state to retain certain data for their transmission at a later date. These measures also seem to be a response to the enactment on March 23, 2018 of the United States’ CLOUD Act. This was itself adopted in response to the Microsoft case, which gave rise to a decision by a court of appeals to the effect that the Stored Communications Act of 1986 only applied to data stored in the United States and did not have any extraterritorial effect. 19 14 Framework Decision 2002/465/JHA of June 13, 2002. 15 COM(2016) 819 final. 16 Art. 86 TFEU, regulation 2017/1939/EU implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office. 17 COM (2018) 225 final. 18 COM (2018) 226 final. 19 See Sylvie Peyrou, “Le projet de règlement ‘E-evidence’ (preuves électroniques) présenté par la Commission européenne: un ‘Cloud Act’ européen,” http://www.gdr-elsj.eu. 9