HLG Recommendations: Lawful Access To Data for Effective Law Enforcement

Importance of Electronic Evidence

In today’s digital age, almost every criminal investigation has a digital component. Technologies and tools which are so important in our everyday lives, such as facilitating freedom of speech, association and conducting business, are also abused for criminal purposes. Law enforcement authorities face significant challenges in securing access to electronic evidence, to effectively investigate and prosecute crime. While encrypted devices and apps, and Virtual Private Networks (VPNs) are designed to protect the privacy of legitimate users, they also provide criminals with effective means to hide their identities, market their criminal products and services, channel payments and conceal their activities and communications, effectively avoiding detection, investigation and prosecution.

Establishment of HLG

In June 2023, the EU Commission established a High-Level Expert Group (HLG) on “access to data for effective law enforcement”.  This initiative was taken on the basis that if the challenges were “not properly addressed, there is a real risk that this current trend will enable criminals to go ‘dark’, by creating online safe havens of impunity, where anonymity of criminals is guaranteed at the expense of victims and potential victims of crime”.  The HLG - composed of representatives of the member states, the Commission, EU bodies and agencies and the EU Counter-Terrorism Coordinator - focused on three workstreams:

1.    Access to data at rest in a user’s device

2.     Access to data at rest in a service provider’s system and

3.     Real time access to communication data (interception)

42 Recommendations

Following its deliberations, the HLG submitted 42 ‘Recommendations’ to the EU Commission in May 2024, relating to further development of EU policies and legislation.  These recommendations were structured under three broad headings:

1.     Capacity Building measures

2.     Cooperation with Industry and Standardisation and

3.     Legislative Measures

The HLG expanded on its recommendations in a Concluding Report, published in November 2024, which outlined how the recommendations could be operationalised, such as enabling access to data in a readable format and providing for harmonised and consistent data retention legislation.

Next Steps

In December 2024, the EU Council invited the EU Commission to prepare, by the first half of 2025, “a roadmap for the implementation of concrete measures to guarantee access to data for effective law enforcement, taking into account the relevant case law of the Court of Justice of the EU and with full respect for fundamental rights”.

For more information, contact our expert team here.