Cybercrime Convention-based Access to Personal Data Held by Big Tech: Decades of Council of Europe’s Greenlighting Codified in a New Protocol

On 17 November 2021 the Second Additional Protocol to the Convention on enhanced cooperation and disclosure of electronic evidence was adopted by the Council of Europe. Through this Protocol it is hoped to strengthen judicial coop- eration mechanisms including direct cooperation with service providers and joint investigation teams. Considering this development, this chapter mainly focuses on how the Council of Europe and its Member States primarily used soft law as an effective tool to influence policy as regards transborder access to online evidence in criminal matters. Starting with the 2001 Cybercrime Convention that does not explicitly provide for unilateral transborder access to data, this chapter encour- ages the reader to witness an intentional evolution from its original provisions to the adoption of soft law instruments such as different recommendations, and more importantly, guidance notes, which have eventually led to the momentum of adopting a Protocol. The chapter reflects on the agenda being pushed through these soft law instruments: to eventually expand on the interpretation of ‘domestic reach’ vis-à-vis electronic evidence in criminal matters. While laudable in terms of promoting efficiency, the law enforcement-centric greenlighting has its obvious pitfalls, one of which is the want of contribution to the promotion of better stand- ards and protections for data protection and other relevant rights.