The legal service of the EU Council of Ministers has raised concerns about the proposed regulation on online surveillance by the EU Commission. The initiative aims to combat child sexual abuse, but it could potentially breach the fundamental right to respect for private life. The core of the Commission’s proposal is to order providers of encrypted messenger services to search for known and new depictions of child sexual abuse. However, this broad measure infringes on fundamental rights and is not compatible with ECJ case law. The EU Council’s legal experts state that a “general and indiscriminate review” of information could only be considered justified if there is a serious threat to national security.
There is a risk that detection orders would have to be extended to other providers and lead to the permanent monitoring of all interpersonal communication. Consequently, general access to personal messages could undermine the right to confidentiality of communication. The draft also entails the obligation to verify the age of messenger and hosting services as well as app stores. Such a verification process would have to be implemented through mass profiling of users, biometric analysis of the user’s face and/or voice, or through digital identification/certification systems.
The Swedish Council Presidency sees no need for correction of Article 7 on chat control, and ten EU countries recently backed them. However, the federal government opposes chat control using client-side scanning (CSS) as it would undermine end-to-end encryption. Federal Minister of the Interior Nancy Faeser sticks to monitoring private, unencrypted communication through server-side scanning of chats and personal cloud storage. However, Digital Minister Volker Wissing opposes it and wants to veto it if needed.
Following the criticism of their advisors, the Federal Surveillance Minister’s position has become untenable, according to MEP Patrick Breyer. The proposed regulation could potentially “complicate effective investigations, criminalize children en masse, and ignore the actual abusers and producers of such material.”
