Developed by the EU Innovation Hub for Internal Security, the report stresses the balance that needs to be struck between securing private communications and fundamental rights, while enabling investigations and prosecutions to combat organised crime and terrorism. The publication gives an overview of the use of encrypted communication tools such as EncroChat and SkyECC by criminal networks and analyses the topic of encryption from a legal, technical, policy and research point of view. The report is the result of the pooling of expertise of all partners collaborating in the EU Innovation Hub for Internal Security, hosted at Europol: CEPOL, EIGE, EUAA, Eurojust, eu-LISA, EMCDDA, Europol, Frontex, FRA, the General Secretariat of the Council of the European Union (including the EU Counterterrorism Coordinator’s Office) and the European Commission (Directorate Generals JRC and Home).

Besides the well-known EncroChat and SkyECC cases, EU agencies Europol and Eurojust have both dealt with several other cases in which organised crime groups were suspected of using encryption tools and methods. The use of encryption continues to pose significant challenges to law enforcement and judicial authorities to intercept (criminal) communications, and to successfully collect and use digital evidence in court proceedings. These cases concern not only cyber-enabled and cyber-dependent crimes, but also other crime areas such as drug trafficking, aggravated fraud schemes, and money laundering. Solutions found to collect encrypted digital evidence go hand-in-hand with ensuring the protection of fundamental rights and alignment with established principles of proportionality and necessity. Legal answers to this challenge continue being multi-faceted and complex.

P.16 In Germany, the Federal Court of Justice dismissed the appeal lodged following a judgment passed by the Hamburg Regional Court on 15 July 2021 (sentence for offences of drug trafficking). The Court ruled that the EncroChat data forwarded by France could be used as evidence if it served the purpose of investigating serious criminal offences.

P.17 In non-EU Member State Norway, the Supreme Court ruled in favour of an earlier decision by the Oslo District Court that material from an encrypted communication service (i.e. EncroChat) was allowed as evidence in a criminal case of drug trafficking. This decision was first upheld by the Norwegian Court of Appeal. The premise for the Supreme Court’s conclusion was that the evidence had been legally acquired under French law.