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Former CJEU judge: EU Chat Control plans for indiscriminately searching private messages and breaking secure encryption are doomed to fail in court

European Parliament Freedom, democracy and transparency Press releases

In another blow to the EU Commission’s proposed child sexual abuse regulation, a former judge of the EU’s top court of justice finds that the proposed mass scanning of private messages for suspected content would likely be struck down by the Court for violating the fundamental right to privacy. The ex judge dismisses the defence put forward by the Commission in response to similar findings by the EU Council’s legal service earlier this year. Adding to those findings, the former judge concludes that the proposed extension of scanning obligations to end-to-end encrypted communications services also violates EU law for lacking legal certainty (pages 35-37 of the legal analysis).

“EU governments in Council must accept now that the only way forward with this dystopian Chat Control bill, both politically and legally, is to remove indiscriminate mass scanning and end-to-end encrypted services from the proposal. I call on EU governments to stop pursuing chat control and the destruction of secure encryption! An overwhelming majority in the EU Parliament will tomorrow propose limiting surveillance to suspects and safeguarding secure encryption. No child is helped with legislation that will inevitably fail in court even before its implementation. Do you really want to repeat the disaster caused by the Data Retention Directive?” comments Pirate Party MEP Patrick Breyer, who commissioned the legal opinion and co-negotiated the European Parliament’s position on the proposed Chat Control regulation.

The author of the legal opinion Christopher Vajda is a long-time judge of the CJEU (2012-2020).

In his legal opinion he finds that «the provision for DOs [detection orders] in the Regulation is likely to be unlawful on grounds of proportionality, lack of reasoning, legal certainty, as well as the requirement that such interferences should be provided by the law.»

In response to the Commission, he concludes that he “cannot see how a DO [detection order], and the process leading up to it, can preclude it being considered to require general and indiscriminate monitoring of electronic communications.”

The ex-judge calls the Detection Orders of the proposal “a major inroad into the fundamental right to the protection of privacy and data guaranteed by Articles 7 and 8 of the Charter which is, so far as I am aware, far greater than contained in any previous legislation”.

Document: Legal opinion