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Bundestag legal experts find: EU Chat Control CSAM scanner plan would not hold up in court

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The opinion of the independent legal service of the German Bundestag on the EU’s controversial proposal to scan private communications for suspected content is now available in English. The parliament’s lawyers state that it is questionable whether the current draft regulation represents any added value for the fight against (physical) sexual child abuse. Against the background of the previous case law of the EU Court of Justice on data retention, they consider it “unlikely that a general monitoring of individual communications would withstand the scrutiny of (European) fundamental rights”.

In their opinion the law would negatively impact communication behaviour of minors and generally freedom of speech and expression. Furthermore, the opinion questions the practicability of scanning technology which would produce a high number of false positives even with a low error rate, due to the sheer number of messages scanned. Lastly, the analysis echos fears already expressed in civil society for the future of end-to-end encryption. The paper points out that regardless of the technical design for circumventing encryption, third parties would be able to gain access, creating an additional threat to cyber security.

EU lawmaker Patrick Breyer (Pirate Party) comments the findings:

“There is a reason why the mandatory general monitoring scheme proposed by the EU Commission doesn’t exist anywhere else in the free world: It breaches the essence of the human right to respect the secrecy of our correspondence. How is the EU Commission helping children by proposing a regulation that will invariably fail in the European Court of Justice for violating the Charter of Fundamental Rights? If this proposal is adopted and then annulled by the Court down the line, we will have wasted years that we could have worked on more effective and proportionate solutions to protect the victims of sexual violence. We should start this work now.”

Breyer’s website on the EU’s Chat Control proposal