La lotta al crimine nell'era di Internet: Le misure dell'Unione Europea sull'accesso transfrontaliero alle prove elettroniche

Nowadays, the Internet occupies a central role in people’s everyday life. It is literally everywhere, as it can be accessed through a multitude of devices all over the world to facilitate and improve the performance of most human activities and services. Unfortunately, while some connect to the web for entertainment or business reasons, others make use of the Internet for unlawful purposes. The regulation of the so-called cyberworld is of central importance today for the detection, investigation, prevention, and prosecution of cyber and related offences, as well as to make sure that criminals are duly identified and punished. Regulatory attempts are pursued at the national, regional, and international level because of the rapid, unprecedented expansion and usage of the Internet and related technologies, through which wrongdoers commit both traditional crimes normally persecuted in the physical world, and new types of offences that tend to be connected to the online dimension. In any case, law enforcement and judicial authorities worldwide increasingly need to have access to the digital traces left by criminals on a daily basis in the 21st century, which are normally known as electronic evidence. This paper will discuss the borderless nature of the Internet, that has generated an increasing demand for international cooperation in criminal matters among countries, which constantly seek to access and gather information in electronic form that is normally stored on servers located abroad. The main challenges posed by electronic evidence such as data sovereignty issues and loss of knowledge of location will be examined, as well as existing mechanisms of international cooperation in criminal matters between States such as the mutual legal assistance system. The paper will then particularly focus on the related developments undertaken by, and the general perspective of the European Union. In this regard, emphasis will be put on the recent European Commission’s E-evidence Proposal, which consists of a proposed Regulation on European Production and Preservation Orders, and a proposed Directive on the appointment of legal representatives. The paper will then analyse parallel legislation created in the United States, known as the CLOUD Act. Such legislative instrument is deemed particularly important for EU Member States as well, given the influent, dominant role played by the US in the field of cross-border electronic evidence gathering. This occurs because the majority of Internet service providers, namely those private companies that store individual users’ data and personal information, are located on the American soil. These include Google, Facebook, Twitter, and Microsoft. Therefore, due to the increasing need of law enforcement authorities worldwide to access data held by Internet service providers for criminal law purposes, it is inevitable that EU Member States will be influenced by US legislation as well, at least to some extent. The paper will finally conclude by briefly examining existing legislation in criminal matters between the EU and Japan, given the relevant economic role played by the latter. General considerations on the most significant international developments aimed at regulating cross-border access to electronic evidence will be summarised as well