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.
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