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Half-good new Polish Chat Control proposal to be discussed on Wednesday

European Parliament Freedom, democracy and transparency Press releases

Poland, currently presiding over the EU Council, proposes a major change to the much-criticised EU chat control proposal to search all private chats for suspicious content, even at the cost of destroying secure end-to-end encryption: Instead of mandating the general monitoring of private chats („detection orders“), the searches would remain voluntary for providers to implement or not, as is the status quo. Representatives of EU governments will discuss the proposal in the EU’s law enforcement working party on Wednesday.

“The new proposal is a break-through and a major leap forward when it comes to saving our fundamental right to confidentiality of our digital correspondence”, comments Patrick Breyer (Pirate Party), a former Member of the European Parliament and digital freedom fighter. “It would protect secure encryption and thus keep our smartphones safe. However three fundamental problems remain unsolved:

1) Mass surveillance: Even where voluntarily implemented by communications service providers such as currently Meta, Microsoft or Google, chat control is still totally untargeted and results in indiscriminate mass surveillance of all private messages on these services. According to the EU Commission about 75% of the millions of private chats, photos and videos leaked every year by the industry’s unreliable chat control algorithms are not criminally relevant and place our intimate communication in unsafe hands where it doesn’t belong. A former judge of the European Court of Justice, Ninon Colneric (p. 34-35), and the European Data Protection Supervisor (par. 11) have warned that this indiscriminate monitoring violates fundamental rights even where at providers’ discretion, and two lawsuits against the practise are already pending in Germany. The European Parliament proposes a different approach: To make searches mandatory, but limit them to persons or groups connected to child sexual abuse. Parliament also proposes that providers should have to make their services “secure by design and default” with a range of mandatory user controls, prompts and warnings.

2) Digital house arrest: According to the Article 6 that is being proposed without changes, users under 16 would no longer be able to install commonplace apps from app stores to “protect them from grooming”, including messenger apps such as Whatsapp, Snapchat, Telegram or Twitter, social media apps such as Instagram, TikTok or Facebook, games such as FIFA, Minecraft, GTA, Call of Duty, Roblox, dating apps, video conferencing apps such as Zoom, Skype, Facetime. This minimum age would be easy to circumvent and disempower as well as isolate teens instead of making them stronger.

3) Anonymous communications ban: According to the Article 4 (3) that is being proposed without changes, users would no longer be able to set up anonymous e-mail or messenger accounts or chat anonymously without needing to present an ID or their face, making them identifiable and risking data leaks. This would inhibit for instance sensitive chats related to sexuality, anonymous media communications with sources (e.g. whistleblowers) as well as political activity.

All considered the Polish proposal is major progress in terms of keeping us safe online, but it requires substantially more work. Anyway the proposal is likely to go too far already for the hardliner majority of EU governments and the EU Commission whose positions are so extreme that they will rather let down victims altogether than accept a proportionate, court-proof and politically viable approach.”