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Any crime could generate digital evidence. That is a reality law enforcement authorities across the world need to face. The volatile and "unterritorial" nature of the evidence means that international cooperation in criminal matters is confronted with new questions. One of these questions is whether the traditional cooperation mechanism, mutual legal assistance, is a viable way of working. Due to its time-consuming and cumbersome functioning combined with the lack of a faster alternative, countries have developed unilateral and extraterritorial methods of evidence gathering. This paper zooms in on this development and the risks it entails.

The need for law enforcement authorities cooperating with private companies is not new. Personal data retained by private companies can be necessary for the purpose of preventing, detecting, investigating and prosecuting criminal offences. Besides issues with purpose limitation and retention periods, companies are developing products that aim to protect citizens' privacy and data by using encrypted software and building personal servers. Such products are good news for law-abiding citizens who are concerned with the protection of their personal data and privacy. Such products however also protect data that are part of criminal offences such as child sexual exploitation and terrorism, making it difficult for law enforcement authorities to access these data for the purpose of preventing, investigating or prosecuting these criminal offences. Thus, essential questions are how law enforcement authorities should approach this additional challenge on the one hand and how legislators should react to this on the other hand.

The still to be adopted Stockholm Programme, setting out the policy for justice and home affairs for the next five years, includes a chapter on data protection that calls for a comprehensive legal framework on data protection covering all areas of EU competence. With Directive 95/46 and a newly enacted Framework Decision on data protection in criminal matters there is still a need for such a comprehensive EU protection scheme. Both existing instruments are not consistent with each other and cannot thus form a comprehensive framework of data protection. The inconsistencies have equally penetrated the transatlantic cooperation in criminal matters. When assessing the agreements concluded between Europol, Eurojust and the EU, on the one hand, and the US, on the other (including the PNR Agreements), the same issues can be detected. Still, the communication on the Stockholm Programme refers to the data protection provisions in these agreements as an example for future bilateral and multilateral agreements.

The still to be adopted Stockholm Programme, setting out the policy for justice and home affairs for the next five years, includes a chapter on data protection that calls for a comprehensive legal framework on data protection covering all areas of EU competence. With Directive 95/46 and a newly enacted Framework Decision on data protection in criminal matters there is still a need for such a comprehensive EU protection scheme. Both existing instruments are not consistent with each other and cannot thus form a comprehensive framework of data protection. The inconsistencies have equally penetrated the transatlantic cooperation in criminal matters. When assessing the agreements concluded between Europol, Eurojust and the EU, on the one hand, and the US, on the other (including the PNR Agreements), the same issues can be detected. Still, the communication on the Stockholm Programme refers to the data protection provisions in these agreements as an example for future bilateral and multilateral agreements.