E-VIDENCE: Requesting Electronic Evidence Across Borders for Investigating Online Criminal Matters, Including Terrorism

In today's interconnected world, the proliferation of cyber threats posed by organized crime groups and terrorists presents a significant challenge to global security in various areas. Amidst this digital landscape, the internet serves diverse purposes. Out of 223 convicted terrorists based in the UK, 54% learned some aspect about their intended activities online. This number has been steadily increasing to 76% between 2012 and 2017. During this time 44% downloaded extremist media, 32% prepared for the attack using online resources, 29% communicated with other radicals virtually, 15% disseminated propaganda online; while 14% of offenders opted to engage in violence after witnessing something online and 10% used online resources to overcome a hurdle, they faced in the actual planning of an attack. Leveraging the vast reach of the Internet, social media platforms, and encrypted messaging applications, terrorist actors exploit technology to advance their agendas and perpetrate crimes.

Effectively gathering electronic evidence (e-evidence) from these digital platforms is essential to counteracting these threats on a broader scale. According to a 2023 survey conducted by the European Union, more than half of all criminal investigations involved a request for cross-border access to e-evidence. However, this endeavor is not without its obstacles. It requires overcoming technical barriers and navigating complex legal and jurisdictional issues, including discrepancies in national regulatory frameworks and the diverse terms of service of social media platforms or other Internet services.

A critical concern is the cross-border nature of e-evidence, often stored by service providers in jurisdictions different from where the crimes were committed. This geographical disparity can impede access to vital evidence and hinder the prosecution of perpetrators, undermining efforts to combat terrorism and organized crime. Furthermore, national legislation and local government planning can provide a framework for cross-border e-evidence requests. However, due to the lack of harmonization of the existing legal frameworks across different jurisdictions or the lack of an applicable treaty between the requesting and the requested country and the lack of understanding of the appropriate legal basis where to find relevant resources can create significant legal barriers to accessing e-evidence, which results in delays in investigations and could potentially lead to the halt of the investigation altogether.

Both states and businesses have commitments to protect human rights, as recognized in international guidelines and frameworks. States, being the primary duty-bearers, are responsible for upholding and enforcing applicable laws within their jurisdictions. Simultaneously, business enterprises, as integral components of society, must adhere to all relevant laws and regulations concerning human rights.

In this context, the significance of human rights cannot be overstated. The fight against violent extremist or terrorist groups could potentially serve as a pretext for curtailing fundamental freedoms such as freedom of speech. Likewise, internet providers are confronted with the intricate task of striking a balance between combating hate speech and avoiding unwarranted censorship. This complexity underscores the challenge of navigating these issues while upholding the principles of human rights.

Addressing these challenges requires a comprehensive approach that emphasizes international cooperation, capacity building, and the promotion of fundamental human rights principles. Law enforcement agencies, prosecutors, and judges must possess the requisite knowledge and skills to effectively investigate cybercrimes while upholding fundamental human rights and legal and ethical standards. The project “E-VIDENCE: Requesting Electronic Evidence Across Borders for Investigating Online Criminal Matters, Including Terrorism” (E-VIDENCE) aims to advance this goal through collaborative efforts by the OSCE Transnational Threats Department’s Action Against Terrorism Unit and the Strategic Police Matters Unit, while also drawing on the groundwork laid by United Nations Office on Drugs and Crime and its Practical Guide on requesting electronic evidence across borders. 

In essence, the pursuit of justice in the digital age necessitates a concerted endeavor to bridge technological disparities, navigate legal complexities, and uphold the foundational principles of democracy and the rule of law. Through coordinated action and unwavering dedication, the international community can effectively address the challenges posed by cyber-enabled terrorism and organized crime, thereby advancing the overarching goals of peace, security, and stability, which lie at the heart of the E-VIDENCE project's mission.

Expected results:

Enhance national capacities across the OSCE region regarding the request of e-evidence for investigating and prosecuting online criminal matters, including terrorism related cases while adhering to the fundamental principles of human rights.

Project Pillars:

• Result 1: Pinpointing the specific needs and priorities of OSCE participating States and Partners for Co-operation regarding the cross-border acquisition of e-evidence for combating online criminal activities, including terrorism-related cases with a human rights-centered approach.

• Result 2: Fortifying regulatory frameworks and operational capabilities of participating States and Partners for Co-operation in cross-border e-evidence acquisition, particularly concerning terrorism-related cases by developing standard operational procedures and organizing advocacy events.

• Result 3: Bolstering the technical capacities of national law enforcement agencies and judiciaries in cross-border e-evidence acquisition, emphasizing adherence to human rights standards. Through the Training of Trainers approach, select individuals will receive specialized training to subsequently disseminate knowledge within their respective institutions, ensuring long-term capacity building.