Digital evidence: quantum leap of mutual trust in times of distrust

A large number of criminal offences, not only cybercrime, is currently committed in a way that leaves digital traces making access to it indispensable. Digital evidence is often held abroad. The shortcomings of the current legal framework cross-border cooperation inspired the EU Commission to propose a new Regulation, which is currently debated at the EU Parliament. Based on mutual recognition, the new European Production Order would allow law enforcement in one Member State to request Internet service providers in another one to provide requested data in principle without involvement of the authorities of the latter state. While proposed at times of increasing distrust between Member States, this new system is a legal revolution at various levels, in particular redefining the very concept of mutual recognition and requiring a much higher level of trust. This contribution examines the paradigm shift caused by that instrument and its consequences.