42 Amendments of Jadwiga WIŚNIEWSKA related to 2018/0108(COD)
Amendment 374 #
Proposal for a regulation
Recital 51
Recital 51
(51) Where conflicting obligations exist, the court should determine whether the conflicting provisions of the third country prohibit disclosure of the data concerned on the grounds that this is necessary to either protect the fundamental rights of the individuals concerned or the fundamental interests of the third country related to national security or defence. In carrying out this assessment, the court should take into account whether the third country law, rather than being intended to protect fundamental rights or fundamental interests of the third country related to national security or defence, manifestly seeks to protect other interests or is being aimed to shield illegal activities from law enforcement requests in the context of criminal investigations. Where the court concludes that conflicting provisions of the third country prohibit disclosure of the data concerned on the grounds that this is necessary to either protect the fundamental rights of the individuals concerned or the fundamental interests of the third country related to national security or defence, it should consult the third country via its central authorities, which are already in place for mutual legal assistance purposes in most parts of the world. It should set a deadline for the third country to raise objections to the execution of the European Production Order; in case the third country authorities do not respond within the (extended) deadline despite a reminder informing them of the consequences of not providing a response, the court upholds the Order. If the third country authorities object to disclosure, the court should lift the Order.
Amendment 396 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Regulation lays down the rules under which an authority of a Member State may order a service provider offering services in the Union, to produce or preserve electronic evidenceinformation that may serve as evidence in criminal proceedings, regardless of the location of data. This Regulation is without prejudice to the powers of national authorities to compel service providers established or represented on their territory to comply with similar national measures.
Amendment 406 #
Proposal for a regulation
Article 2 – paragraph 1 – point 3 – introductory part
Article 2 – paragraph 1 – point 3 – introductory part
(3) ‘service provider’ means any natural or legal person that provides one or morat least one of the following categories of services:
Amendment 410 #
Proposal for a regulation
Article 2 – paragraph 1 – point 3 – point c
Article 2 – paragraph 1 – point 3 – point c
(c) services related to the provision of internet domain name and IP numbering services such as IP address providers, domain name registries, domain name registrars and related privacy and proxy services;
Amendment 411 #
Proposal for a regulation
Article 2 – paragraph 1 – point 3 – point c
Article 2 – paragraph 1 – point 3 – point c
(c) services related to the provision of internet domain name and IP numbering services such as IP address providers, domain name registries, domain name registrars and relatedor privacy and proxy services;
Amendment 418 #
Proposal for a regulation
Article 2 – paragraph 1 – point 4 – point b
Article 2 – paragraph 1 – point 4 – point b
(b) having a substantial connection to the Member State(s) referred to in point (a); such a substantial connection to the Member State(s) is considered to exist where the service provider has an establishment in the Union; in the absence of such establishment, substantial connection is identified on the basis of the existence of a significant number of users in one or more Member States, or the targeting of activities towards one or more Member States which can be determined on the basis of all relevant circumstances such as, among others, the use of a language or currency used in that Member State or the availability of an 'app' in the relevant national app store; a substantial connection is also to be assumed where a service provider directs its activities towards one or more Member States as set out in Article 17(1)(c) of Regulation 1215/2012;
Amendment 422 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
(5) ‘establishment’ means either the actual pursuit of an economic activity for an indefinite period through a stable infrastructure from where the business of providingprovision of services is carried out or a stable infrastructure from where the business is managed;the place of the business' central administration.
Amendment 426 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
(6) ‘electronic evidenceinformation’ means evidence data stored in electronic form by or on behalf of a service provider at the time of receipt of a production or preservation order certificate, consisting in stored subscriber data, access data, transactional data and content data; that might serve as evidence during the investigation, prosecution and legal proceedings regarding a criminal offence in a Member State in accordance with national law;
Amendment 430 #
Proposal for a regulation
Article 2 – paragraph 1 – point 7 – point a
Article 2 – paragraph 1 – point 7 – point a
(a) the identity of a subscriber or customer such as the provided name, date of birth, postal or geographic address, billing and payment data, telephone, or email or IP address;
Amendment 434 #
Proposal for a regulation
Article 2 – paragraph 1 – point 7 – point b
Article 2 – paragraph 1 – point 7 – point b
(b) the type of service and itsthe duration including technical dataof the subscription including other relevant suscription-related information and data identifying related technical measures or interfaces used by or provided to the subscriber or customer, and data related to the validation of the use of service, excluding passwords or other authentication means used in lieu of a password that are provided by a user, or created at the request of a user;
Amendment 436 #
Proposal for a regulation
Article 2 – paragraph 1 – point 8
Article 2 – paragraph 1 – point 8
(8) ‘access data’ means data related to the commencement and termination of atechnical identifiers related to a specific user access session to a service, which is strictly necessary for the sole purpose of identifying the user of the service, such assuch as the user ID, the date and time of use, or the log-in to and log-off from the service, together with the IP address allocated by the internet access service provider to the user of a service, dataor the IP address; such data are deemed necessary for the sole purpose of identifying the interfacuser of the used and the user ID. This includesrvice and do not allow profiling an individual; electronic communications metadata as defined in point (g) of Article 4(3) of [Regulation concerning the respect for private life and the protection of personal data in electronic communications] are also included;
Amendment 443 #
Proposal for a regulation
Article 2 – paragraph 1 – point 9
Article 2 – paragraph 1 – point 9
(9) ‘transactional data’ means data related to the provision of a service offered by a service provider that serves to provide context or additional information about such service and is generated or processed by an information system of the service provider, such as the source and destination of a message or another type of interaction, data on the location of the device, date, time, duration, size, route, format, the protocol used and the type of compression, unless such data constitutes access data. This includes electronic communications metadata as defined in point (g) of Article 4(3) of [Regulation concerning the respect for private life and the protection of personal data in electronic communications];
Amendment 448 #
Proposal for a regulation
Article 2 – paragraph 1 – point 10
Article 2 – paragraph 1 – point 10
(10) ‘content data’ means any stored data related to the services provided by service providers in a digital format such as text, voice, videos, images, and sound other than subscriber, access or transactional data;
Amendment 474 #
Proposal for a regulation
Article 4 – paragraph 1 – point a
Article 4 – paragraph 1 – point a
(a) an impartial judge, a court, an or investigating judge or an independent prosecutor competent in the case concerned; or
Amendment 479 #
Proposal for a regulation
Article 4 – paragraph 2 – introductory part
Article 4 – paragraph 2 – introductory part
2. A European Production Order for transactional and contentdata other than subscriber and access data may be issued only by:
Amendment 481 #
Proposal for a regulation
Article 4 – paragraph 2 – point a
Article 4 – paragraph 2 – point a
(a) an impartial judge, a court or an investigating judge competent in the case concerned; or
Amendment 482 #
Proposal for a regulation
Article 4 – paragraph 3 – introductory part
Article 4 – paragraph 3 – introductory part
3. AIrrespective of the data category, a European Preservation Order may be issued by:
Amendment 484 #
Proposal for a regulation
Article 4 – paragraph 3 – point a
Article 4 – paragraph 3 – point a
(a) an impartial judge, a court, an or investigating judge or an independent prosecutor competent in the case concerned; or
Amendment 507 #
Proposal for a regulation
Article 5 – paragraph 4 – point b – indent 3 a (new)
Article 5 – paragraph 4 – point b – indent 3 a (new)
- the possibility to provide evidence in relation to each offence, as well as the need to examine double criminality beyond the list of 32 criminal offences set out in the EIO list;
Amendment 518 #
Proposal for a regulation
Article 5 – paragraph 5 – point g
Article 5 – paragraph 5 – point g
(g) in case of emergency or request, the duly justified reasons for earlier disclosure, the reasons for it;
Amendment 541 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. The European Production Order and the European Preservation Order shall be addressed directly to athe legal representative designated by the service provider that is compelled by the Order to produce or preserve the electronic information for the purpose of gathering evidence in criminal proceedings.
Amendment 557 #
Proposal for a regulation
Article 7 – paragraph 4
Article 7 – paragraph 4
4. Where the legal representative does not comply with its obligations under Articles 9 or 10 and the issuing authority considers that there is a serious risk of loss of data, the European Production Order and the respective EPOC or the European Preservation Order and the respective EPOC-PR may be addressed to any establishment of the service provider in the Union.
Amendment 559 #
Proposal for a regulation
Article 7 a (new)
Article 7 a (new)
Article 7 a Notification In the event that the European Production Order concerns transactional or content data, and the issuing authority has reasonable grounds to believe that the person whose data is sought is not residing on its own territory, the issuing authority shall submit a copy of the order to the competent authority of the enforcing State at the same time the Order is submitted to the addressee, pursuant to Article 7. The notified authority may object if any of the following occurs: a. The data requested are protected by immunities or privileges granted under the law of the enforcing State; b. Disclosure of the requested data may impact the fundamental rights of the individual or the fundamental interests of that State, related to national security and defence; c. The enforcing authority has reasonable grounds to believe that the European Production Order manifestly violates the Charter of Fundamental Rights of the European Union or that it is manifestly abusive; d. The data requested are related to rules on the determination or limitation of critical liability that relate to the freedom of press or freedom of expression in other media; e. The Order is incomplete or evidently incorrect. The notified authority shall inform the issuing authority of any objection as soon as possible or, at the latest, within 10 days after receiving the copy of the Order.
Amendment 562 #
Proposal for a regulation
Article 7 b (new)
Article 7 b (new)
Article 7 b The issuing authority shall provide additional information if requested, within the 10 days timeframe, to the enforcing authority with regards to the Order concerned and where applicable, inform the enforcing authority and the addressee of the withdrawal of the Order.
Amendment 563 #
Proposal for a regulation
Article 7 c (new)
Article 7 c (new)
Article 7 c The enforcing authority shall inform the issuing authority of the duly justified reasons the data in question may not be used or may be used under conditions specified by the enforcing state.
Amendment 571 #
Proposal for a regulation
Article 8 – paragraph 3
Article 8 – paragraph 3
3. The EPOC shall contain all the information listed in Article 5(5) (a) to (h), including sufficient information to allow the addressee to identify and contact the issuing authority. The grounds for the necessity and proportionality of the measure or further details about the investigations shall not be included.
Amendment 575 #
Proposal for a regulation
Article 8 – paragraph 4
Article 8 – paragraph 4
4. The EPOC-PR shall contain all the information listed in Article 6(3) (a) to (f), including sufficient information to allow the addressee to identify and contact the issuing authority. The grounds for the necessity and proportionality of the measure or further details about the investigations shall not be included.
Amendment 578 #
Proposal for a regulation
Article 8 – paragraph 5
Article 8 – paragraph 5
5. Where needed, the EPOC or the EPOC-PR shall be translated into an official language of the Union accepted by the addressee. W and where applicable in case of an EPOC into one of the official languages accepted by the notified State; where no language has been specified, the EPOC or the EPOC-PR shall be translated into one of the official languages of the Member State where the legal representative resides or is established.
Amendment 598 #
Proposal for a regulation
Article 9 – paragraph 2
Article 9 – paragraph 2
2. In emergency cases the addressee shall transmit the requested data without undue delay, at the latest within 6 to 16 hours upon receipt of the EPOC.
Amendment 612 #
Proposal for a regulation
Article 9 – paragraph 4
Article 9 – paragraph 4
4. If the addressee cannot comply with its obligation because of force majeure or of de facto impossibility due to circumstances not attributable to the addressee or, if different, the service provider, notably because at the time the EPOC was received, such as the person whose data is sought is not their customer, or the data has been deleted before receiving the EPOC, the addressee shall inform the issuing authority referred to in the EPOC without undue delay explaining the reasons, using the Form set out in Annex III. If the relevant conditions are fulfilled, the issuing authority shall withdraw the EPOC.
Amendment 647 #
Proposal for a regulation
Article 10 – paragraph 5
Article 10 – paragraph 5
5. If the addressee cannot comply with its obligation because of force majeure, or of de facto impossibility due to circumstances not attributable to the addressee or, if different, the service provider, notably because at the time the EPOC-PR was received, such as the person whose data is sought is not their customer, or the data has been deleted before receiving the Order, it shall contact the issuing authority set out in the EPOC-PR without undue delay explaining the reasons, using the Form set out in Annex III. If these conditions are fulfilled, the issuing authority shall withdraw the EPOC- PR.
Amendment 673 #
Proposal for a regulation
Article 11 – paragraph 1
Article 11 – paragraph 1
1. Addressees and, if different, service providers shall take the necessary measures to ensure the confidentiality of the EPOC or the EPOC-PR and of the data produced or preserved and where requested by the issuing authority,; based on a duly justified request in writing by the issuing authority, addressees, and if different, service providers shall refrain from informing the person whose data is being sought in order not to obstruct the relevant criminal proceedings.
Amendment 684 #
Proposal for a regulation
Article 11 – paragraph 2
Article 11 – paragraph 2
2. Where the issuing authority requested the addressee to refrain from informing the personjustifiably decides to delay the information to the user whose data is being sought through the EPOC, the issuing authority shall inform the person whose data is being sought by the EPOC without undue delay about the data production. This information may be delayed as long as necessary and proportionate to avoid obstructing the relevant criminal proceedingsin question as soon that is possible, without obstructing the ongoing investigations and while providing all the relevant information concerning available remedies as referred to in Article 17.
Amendment 685 #
Proposal for a regulation
Article 11 – paragraph 2 a (new)
Article 11 – paragraph 2 a (new)
2 a. As soon as the criminal proceedings are fully finalised and are no longer essential for preventing any immediate or serious threat to public security, the information obtained shall be deleted.
Amendment 686 #
Proposal for a regulation
Article 11 – paragraph 3
Article 11 – paragraph 3
Amendment 721 #
Proposal for a regulation
Article 15 – paragraph 1
Article 15 – paragraph 1
1. If the addressee considers that compliance with the European Production Order would conflict with applicable laws of a third country, prohibiting disclosure of the data concerned on, the grounds that this is necessary to either protect the fundamental rights of the individuals concerned or the fundamental interests of the third country related to national security or defence, it shall inform the issuing authority of its reasons for not executing the European Production Order in accordance with the procedure referred to in Article 9(5)addressee shall inform the issuing authority and the competent authority of the Member State of the addressee within the deadlines as referred to in Article 9 (1), (2) and (5); under these circumstances, execution of the Order may be suspended.
Amendment 722 #
Proposal for a regulation
Article 15 – paragraph 2
Article 15 – paragraph 2
2. The reasoned objection shall include all relevant details on the law of the third country, its applicability to the case at hand and the nature of the conflicting obligation. ItObjection cannot be based solely on the fact that similar provisions concerning the conditions, formalities and procedures of issuing a production order do not exist in the applicable law of the third country, nor on the only circumstance that the data is stored in a third countryage location.
Amendment 724 #
Proposal for a regulation
Article 15 – paragraph 4
Article 15 – paragraph 4
Amendment 727 #
Proposal for a regulation
Article 15 – paragraph 5
Article 15 – paragraph 5
5. If the competent court finds that no relevant conflict within the meaning ofexists, in accordance to paragraphs 1 and 4 existsto 3, it shall uphold the Order. If the competent court establishes that a relevant conflict within the meaning of paragraphs 1 and 4 exists, the competent courin accordance with paragraphs 1 to 3, a conflict exists and that the relevant third country law serves to either protect the fundamental rights of the individual or the fundamental interests of the third country related to national security and defence, the competent court shall consult the third country concerned. It shall transmit all the relevant factual and legal information as regards the case, including its assessment, to the central authorities in the third country concerned, via its national central authority, with a 15 day deadline to respond. Upon reasoned request from the third country central authority, the deadline may be extended by up to 30 days.
Amendment 729 #
Proposal for a regulation
Article 15 – paragraph 6
Article 15 – paragraph 6
6. If the third country central authority, within the deadline, informs the competent court that it objects to the execution of the European Production Order in this case, the competent court shall lift the Order and inform the issuing authority and the addressee. If no objection is received within the (extended) deadline, the competent court shall send a reminder giving the third country central authority 5 more days to respond and informing it of the consequences of not providing a response. If no objection is received within this additional15-day deadline or the extended deadline, the competent court shall uphold the Order.
Amendment 730 #
Proposal for a regulation
Article 15 – paragraph 7
Article 15 – paragraph 7
7. If the competent court determines that the Order is to be upheld, it shall inform the issuing authority pursuant to paragraphs 1 to 3 a conflict exists and that the relevant third country law prohibits disclosure of the data concerned on grounds other thand the addressee, who shall proceedose referred to in paragraph 5, the competent court shall determine whether to uphold or withdraw the execution of the OrderOrder, in particular when there is imminent threat to life or to physical integrity of a person or to a critical infrastructure.
Amendment 738 #
Proposal for a regulation
Article 17 – paragraph 1
Article 17 – paragraph 1
1. Suspects and accused pPersons whose data was obtained via a European Production Order or European Preservation Order shall have the right to effective remedies against the European Produrespectionve Order during the criminal proceedings for which the Order was issued,issuing state without prejudice to remedies available under Directive (EU) 2016/680 and Regulation (EU) 2016/679.