October 22, 2023,
By Ainsley King
Chat Control: the EU’s Orwellian Solution to Predators
To prosecute child sexual exploitation material, the European Union presented a proposal back in May of 2022 that would even apply to end-to-end encrypted communication systems that are already secure and mandate chat control searches for all email and IM providers. The vote to make this a law was postponed to 19 October 2023 after several countries, including Germany, Austria, Poland and Estonia, objected to the current proposition. A public survey taken before the proposal had shown that the majority of participants, including stakeholders and citizens, were against requiring the usage of chat control. More than eighty percent of those surveyed were against its use for end-to-end encrypted communications.
Essentially, this law negates any social device privacy via mass surveillance by eliminating digital correspondence's privacy and completely automated real-time monitoring of chats and messages. The plan also calls for ineffectual network filtering, screening of private photo storage on personal clouds, age verification requirements that eliminate anonymous communication, censorship of app stores, and the exclusion of minors from the digital world.
Currently, the EU can voluntarily monitor messages under a law known as "Chat Control 1.0." Only a few unencrypted US communication providers, such as Xbox, iCloud email, Gmail, Facebook/Instagram Messenger, Skype, and Snapchat, have voluntarily implemented conversation control. The Commission projects that the obligatory Chat Control 2.0 plan will result in a 354% rise in scanning reports or a 3.5-fold increase.
So, what is this proposal exactly? According to an analysis done by reporter Javier Zarzalejos (EPP) on 19 April, the ‘chat control’ bit of the law would mean, “Mandatory indiscriminate searching of private correspondence and data of unsuspected citizens is still in. Requirement to ‘limit the detection order to an identifiable part or component of service’ such as specific channels or groups (AM 128) goes in the right direction but does not ensure that searches are targeted/limited to specific persons presumably connected to CSEM, as required to avoid annulment of the detection provisions by the Court of Justice.” This means that the countries in the European Union would have unfettered access to any electronic communications regardless of suspicion of any crime. To complete this, they are using artificial intelligence to scan for words regarding grooming.
On behalf of his group, Zarazalejos suggested a few amendments, key among them being, “No indiscriminate chat control: Instead of chat control, the judiciary should be able to order searches of the messages and uploads of suspects for suspicious depictions of child sexual exploitation (not search text for grooming). This is the only way to avoid a disproportionate regulation being overturned in court and achieving nothing at all for children.”
Several EU lawyers have said that this proposal is unlawful. The proposed regulation presents a "particularly serious limitation to the rights to privacy and personal data," according to the legal service of the EU Council, the decision-making body headed by national ministers. It also carries a serious risk of being rejected by a court on several grounds.
"It would require the general and indiscriminate screening of the data processed by a specific service provider, and apply without distinction to all the persons using that specific service, without those persons being, even indirectly, in a situation liable to give rise to criminal prosecution," the EU lawyers write in their text about the draft regulation.
The legal service continues by cautioning that the European Court of Justice has already rendered a decision regarding the metadata screening of communications. It is "quite unlikely that similar screening of content of communications for the purpose of combating crime of child sexual abuse would be found proportionate, let alone with regard to the conduct not constituting criminal offences.” This is because the European Court of Justice has previously ruled that the screening of communications metadata is "proportionate only for the purpose of safeguarding national security."
How will this affect people? If you live in the EU, your emails and chat interactions will be automatically screened for questionable content. Nothing is kept a secret or confidential. To search your messages, no court warrant or preliminary suspicion is needed - it always happens on its own. Staff and contractors of multinational firms and law enforcement agencies may view your private or intimate images if an algorithm flags a message as questionable. Also, it would be possible for strangers to view your intimate images, so you can't trust who handles them. Text recognition algorithms searching for "child grooming" sometimes mistakenly highlights intimate conversations, flirts and sexting, which may be viewed by employees and contractors of multinational organisations as well as law enforcement agencies.
Anyone could be unjustly accused of spreading materials encouraging child sex exploitation and potentially face criminal charges. For example, messaging and chat management algorithms have been known to flag perfectly acceptable vacation photographs of kids playing on the beach. The Swiss federal police authorities claim that 80 percent of machine-generated reports are unfounded. Comparably, only 20 percent of NCMEC reports received in Ireland in 2020 were determined to include genuine child abuse material. Minors are the focus of over 40 percent of all criminal investigation procedures started in Germany for child pornography.
Everyone should expect major issues on your next international travel. It's possible that machine-generated reports about your communications were sent to nations without data privacy laws, like the USA, with unimaginable consequences. Hackers and intelligence agencies might be able to snoop on your personal emails and chats. If safe encryption is withdrawn to screen communications, your messages will be accessible to anyone with the necessary technological skills.
This is just the start. It's quite simple to employ chat and messaging technologies for different purposes after they've been built. Furthermore, who can ensure that our PCs and smartphones won't be utilized as incrimination tools in the future? It’s understandable to take such harsh actions to protect children, but it’s an attack on privacy.
Anja Hirschel, top candidate of the Pirate Party in Germany for the European Election 2024, comments: “The push for indiscriminate chat control is a profound attack on our privacy and unprecedented in the free world. It divides child protection organisations, abuse victims, other stakeholders, the Parliament and the Council. It is time for a fresh start that builds on consensus. I am convinced that we can protect children and all of us much better with a new approach. And we can do it without sacrificing our fundamental liberties.”
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