The End of the Privacy of Digital Correspondence
The EU wants to have all private chats, messages, and emails automatically searched for suspicious content, generally and indiscriminately. The stated aim: To prosecute child pornography. The result: Mass surveillance through fully automated real-time messaging and chat control and the end of secrecy of digital correspondence. The trilogue negotiations on chatcontrol have been finalised in May. Now, the European Parliament will have to vote on the voluntary use of chatcontrol by online services providers. Read here my press statement on the negotiation deal.
How did we get here?
In 2020 the European Commission proposed “temporary” legislation aimed at allowing the search of all private chats, messages, and emails for illegal depictions of minors and attempted initiation of contacts with minors. This is to allow the providers of Facebook Messenger, Gmail, et al, to scan every message for suspicious text and images. This takes place in a fully automated process and using error-prone “artificial intelligence”. If an algorithm considers a message suspicious, its content and meta-data are disclosed automatically and without human verification to a private US-based organization and from there to national police authorities worldwide. The reported users are not notified.
Some U.S. providers of services such as Gmail and Outlook.com are already performing such automated messaging and chat controls. Through a second piece of legislation, the EU Commission intends to oblige all providers of chat, messaging and e-mail services to deploy this mass surveillance technology. At the same time, a representative survey conducted in March 2021 clearly shows that a majority of Europeans oppose the use of chat control (Detailed poll results here).
Videos on Chat control are available in this playlist
How does this affect you?
- All of your chat conversations and emails will be automatically searched for suspicious content. Nothing remains confidential or secret. There is no requirement of a court order or an initial suspicion for searching your messages. It occurs always and automatically.
- If an algorithms classifies the content of a message as suspicious, your private or intimate photos may be viewed by staff and contractors of international corporations and police authorities. Also your private nude photos may be looked at by people not known to you, in whose hands your photos are not safe.
- Flirts and sexting may be read by staff and contractors of international corporations and police authorities, because text recognition filters looking for “child grooming” frequently falsely flag intimate chats.
- You can falsely be reported and investigated for allegedly disseminating child sexual exploitation material. Messaging and chat control algorithms are known to flag completely legal vacation photos of children on a beach, for example. According to Swiss federal police authorities, 86% of all machine-generated reports turn out to be without merit. 40% of all criminal investigation procedures initiated in Germany for “child pornography” target minors.
- On your next trip overseas, you can expect big problems. Machine-generated reports on your communications may have been passed on to other countries, such as the USA, where there is no data privacy – with incalculable results.
- Intelligence services and hackers may be able to spy on your private chats and emails. The door will be open for anyone with the technical means to read your messages if secure encryption is removed in order to be able to screen messages.
- This is only the beginning. Once the technology for messaging and chat control has been established, it becomes very easy to use them for other purposes. And who guarantees that these incrimination machines will not be used in the future on our smart phones and laptops?
Trilogue negotiations are underway between representatives of the European Parliament and EU governments with participation of the EU Commission regarding the legislative proposal. The different positions of the three institutions are listed in this leaked 4 column document in detail (English, 5 March 2021). Child protection organizations are exerting massive pressure. All parliamentary groups are in favor of indiscriminate messaging and chat control, with the exception of Greens/EFA and the Left. The adoption of the legislation could take place in March.
In April the EU Commission intends to make a second legislative proposal, which is to force all providers of email, messaging and chat services to comprehensively search all private messages in the absence of any suspicion.
According to the case-law of the European Court of Justice the permanent and comprehensive automated analysis of private communications violates fundamental rights and is prohibited (paragraph 177). For this reason, Member of the European Parliament Patrick Breyer has filed a complaint against U.S. companies Facebook and Google with the data protection authorities for violating the General Data Protection Regulation. Former judge of the European Court of Justice Prof. Dr. Ninon Colneric has extensively analysed the plans and concludes in a legal assessment that the EU legislative plans on chat control are not in line with the case law of the European Court of Justice and violate the fundamental rights of all EU citizens to respect for privacy, to data protection and to freedom of expression.
14 January 2021: Internal technical negotiations of the European Parliament 15 January 2021: Technical negotiations between Council, Commission and Parliament (Technical Trilogue) 18 January 2021: Shadow rapporteur meeting of the negotiators of the European Parliament 19 January 2021: Internal technical negotiations of the European Parliament 20 January 2021: Technical negotiations between Council, Commission and Parliament (Technical Trilogue) 25 January Shadow rapporteur meeting of the negotiators of the European Parliament 01 February 2021: Internal technical negotiations of the European Parliament 05 February 2021: Internal technical negotiations of the European Parliament 22 February 2021: Shadow rapporteur meeting of the negotiators of the European Parliament 23 February 2021: Second Political Trilogue negotiations between Council, Commission and Parliament 26 February 2021: Internal technical negotiations of the European Parliament 1 March 2021: Shadow rapporteur meeting of the negotiators of the European Parliament 2 March 2021: Internal technical negotiations of the European Parliament 8 March 2021: Shadow rapporteur meeting of the negotiators of the European Parliament 9 March 2021: Third Political Trilogue negotiations between Council, Commission and Parliament 23 March 2021: Shadow rapporteur meeting of the negotiators of the European Parliament 25 March 2021: Shadow rapporteur meeting of the negotiators of the European Parliament 19 April: Internal technical negotiations of the European Parliament, Commission and Council 28 April: Shadow rapporteur meeting of the negotiators of the European Parliament 29 April: Fifth Political Trilogue negotiations between Council, Commission and Parliament
- Expected for June/August 2021: Plenary Vote
- Expected for Summer 2021: Commission proposal on mandatory messaging and chat controls for online service providers
- All citizens are placed under suspicion, without cause, of possibly having committed a crime. Text and photo filters monitor all messages, without exception. No judge is required to order to such monitoring – contrary to the analog world which guarantees the privacy of correspondence and the confidentiality of written communications. According to a judgment by the European Court of Justice, the permanent and general automatic analysis of private communications violates fundamental rights (case C-511/18, Paragraph 192). Nevertheless, the EU now intends to adopt such legislation. For the court to annul it can take years. Therefore we need to prevent the adoption of the legislation in the first place.
- The confidentiality of private electronic correspondence is being sacrificed. Users of messenger, chat and e-mail services risk having their private messages read and analyzed. Sensitive photos and text content could be forwarded to unknown entities worldwide and can fall into the wrong hands. NSA staff have reportedly circulated nude photos of female and male citizens in the past. A Google engineer has been reported to stalk minors.
- Indiscriminate messaging and chat control wrongfully incriminates hundreds of users every day. According the Swiss Federal Police, 90% of machine-reported content is not illegal, for example harmless holiday photos showing nude children playing at a beach.
- Securely encrypted communication is at risk. Up to now, encrypted messages cannot be searched by the algorithms. To change that back doors would need to be built in to messaging software. As soon as that happens, this security loophole can be exploited by anyone with the technical means needed, for example by foreign intelligence services and criminals. Private communications, business secrets and sensitive government information would be exposed. Secure encryption is needed to protect minorities, LGBTQI people, democratic activists, journalists, etc.
- Criminal justice is being privatized. In the future the algorithms of corporations such as Facebook, Google, and Microsoft will decide which user is a suspect and which is not. The proposed legislation contains no transparency requirements for the algorithms used. Under the rule of law the investigation of criminal offences belongs in the hands of independent judges and civil servants under court supervision.
- Indiscriminate messaging and chat control creates a precedent and opens the floodgates. Deploying technology for automatically monitoring all online communications is dangerous: It can very easily be used for other purposes in the future, for example copyright violations, drug abuse, or “harmful content”. In authoritarian states such technology is to identify and arrest government opponents and democracy activists. Once the technology is deployed comprehensively, there is no going back.
- The temporary legislation on the table is ineffective. Contrary to its intent, it will not allow Facebook et al to continue the mass monitoring of private correspondence. It does limit the ePrivacy directive. The chat control, however, will continue to violate the General Data Protection Regulation (DSGVO) because it lacks a legal basis and violates the principle of proportionality. A complaint filed by Patrick Breyer is being examined by the Irish Data Protection Agency.
Proponents claim indiscriminate messaging and chat control facilitates the prosecution of child sexual exploitation. However, this argument is controversial, even among victims of child sexual abuse. In fact messaging and chat control can hurt victims and potential victims of sexual exploitation:
- Safe spaces are destroyed. Victims of sexual violence are especially in need of the ability to communicate safely and confidentially to seek counseling and support, for example to safely exchange among each other, with their therapists or attorneys. The introduction of real-time monitoring takes these safe rooms away from them. This can discourage victims from seeking help and support.
- Self-recorded nude photos of minors (sexting) end up in the hands of company employees and police where they do not belong and are not safe.
- Minors are being criminalized. Especially young people often share intimate recordings with each other (sexting). With messaging and chat control in place, their photos and videos may end up in the hands of criminal investigators. German crime statistics demonstrate that 40% of all investigations for child pornography target minors.
- Indiscriminate messaging and chat control does not contain the circulation of illegal material but actually makes it more difficult to prosecute child sexual exploitation. It encourages offenders to go underground and use private encrypted servers which can be impossible to detect and intercept. Even on open channels, indiscriminate messaging and chat control does not contain the volume of material circulated, as evidenced by the constantly rising number of machine reports.
Documents on the legislative procedure
- Legislative Proposal by the Commission (10 September 2020)
- Technical solutions to screen end to end encrypted communications (September 2020)
- Report of the Committee for Civil Liberties, Justice and Home Affairs (11 December 2020)
- Answers given by the Commission to questions of the Members of Parliament (28 September 2020)
- Answers given by the Commission to questions of the Members of Parliament (27 October 2020)
- Impact Assessment by the European Parliamentary Research Service (5 February 2021)
- Leaked 4 column document reflecting the state of negotiations (englisch) (5 March 2021)
- Legal Opinion on the Compatibility of Chatcontrol with the case law of the ECJ (March 2021)
Critical commentary and further reading
- Prostasia Foundation: “How the War against Child Abuse Material was lost” (19 August 2020)
- European Digital Rights (EDRi): “Is surveilling children really protecting them? Our concerns on the interim CSAM regulation” (24 September 2020)
- Civil Society Organizations: “Open Letter: Civil society views on defending privacy while preventing criminal acts” (27 Oktober 2020)
“we suggest that the Commission prioritise this non-technical work, and more rapid take-down of offending websites, over client-side filtering […]”
- European Data Protection Supervisor: “Opinion on the proposal for temporary derogations from Directive 2002/58/EC for the purpose of combatting child sexual abuse online” (10. November 2020)
“Due to the absence of an impact assessment accompanying the Proposal, the Commission has yet to demonstrate that the measures envisaged by the Proposal are strictly necessary, effective and proportionate for achieving their intended objective.”
- Alexander Hanff (victim of child abuse and privacy professional): “Why I don’t support privacy invasive measures to tackle child abuse.” (11 November 2020)
“As an abuse survivor, I (and millions of other survivors across the world) rely on confidential communications to both find support and report the crimes against us – to remove our rights to privacy and confidentiality is to subject us to further injury and frankly, we have suffered enough. […] it doesn’t matter what steps we take to find abusers, it doesn’t matter how many freedoms or constitutional rights we destroy in order to meet that agenda – it WILL NOT stop children from being abused, it will simply push the abuse further underground, make it more and more difficult to detect and ultimately lead to more children being abused as the end result.”
- AccessNow: “The fundamental rights concerns at the heart of new EU online content rules” (19 November 2020)
“In practice this means that they would put private companies in charge of a matter that public authorities should handle”
- Federal Bar Association (BRAK) (in German): “Stellungnahme zur Übergangsverordnung gegen Kindesmissbrauch im Internet” (24 November 2020)
„the assessment of child abuse-related facts is part of the legal profession’s area of responsibility. Accordingly, the communication exchanged between lawyers and clients will often contain relevant keywords. […] According to the Commission’s proposals, it is to be feared that in all of the aforementioned constellations there will regularly be a breach of confidentiality due to the unavoidable use of relevant terms.”
- Alexander Hanff (Victim of Child Abuse and Privacy Activist): “EU Parliament are about to pass a derogation which will result in the total surveillance of over 500M Europeans” (4 Dezember 2020)
“I didn’t have confidential communications tools when I was raped; all my communications were monitored by my abusers – there was nothing I could do, there was no confidence. […] I can’t help but wonder how much different my life would have been had I had access to these modern technologies. [The planned vote on the e-Privacy Derogation] will drive abuse underground making it far more difficult to detect; it will inhibit support groups from being able to help abuse victims – IT WILL DESTROY LIVES.”
- German Data Protection Supervisor (in German): „BfDI kritisiert versäumte Umsetzung von EU Richtlinie“ (17 Dezember 2020)
“A blanket and unprovoked monitoring of digital communication channels is neither proportionate nor necessary to detect online child abuse. The fight against sexualised violence against children must be tackled with targeted and specific measures. The investigative work is the task of the law enforcement authorities and must not be outsourced to private operators of messenger services.”
- European Digital Rights (EDRi): Wiretapping children’s private communications: Four sets of fundamental rights problems for children (and everyone else) (10 February 2021)
“As with other types of content scanning (whether on platforms like YouTube or in private communications) scanning everything from everyone all the time creates huge risks of leading to mass surveillance by failing the necessity and proportionality test. Furthermore, it creates a slippery slope where we start scanning for less harmful cases (copyright) and then we move on to harder issues (child sexual abuse, terrorism) and before you realise what happened scanning everything all the time becomes the new normal.”
- German Bar Association (DAV): “Indiscriminate communications scanning is disproportionate” (9 March 2021)
“The DAV is explicitly in favour of combating the preparation and commission of child sexual abuse and its dissemination via the internet through effective measures at EU-level. However, the Interim Regulation proposed by the Commission would allow blatantly disproportionate infringements on the fundamental rights of users of internet-based communication services. Furthermore, the proposed Interim Regulation lacks sufficient procedural safeguards for those affected. This is why the legislative proposal should be rejected as a whole.”
- Letter from the President of the German Bar Association (DAV) and the President of the Federal Bar Association (BRAK) (in German) (8 March 2021)
“Positive hits with subsequent disclosure to governmental and non-governmental agencies would be feared not only by accused persons but above all by victims of child sexual abuse. In this context, the absolute confidentiality of legal counselling is indispensable in the interest of the victims, especially in these matters which are often fraught with shame. In these cases in particular, the client must retain the authority to decide which contents of the mandate may be disclosed to whom. Otherwise, it is to be feared that victims of child sexual abuse will not seek legal advice.”
- Strategic autonomy in danger: European Tech companies warn of lowering data protection levels in the EU (15 April 2021)
“In the course of the initiative “Fighting child sexual abuse: detection, removal, and reporting of illegal content”, the European Union plans to abolish the digital privacy of correspondence. In order to automatically detect illegal content, all private chat messages are to be screened in the future. This should also apply to content that has so far been protected with strong end-to-end encryption. If this initiative is implemented according to the current plan it would enormously damage our European ideals and the indisputable foundations of our democracy, namely freedom of expression and the protection of privacy […]. The initiative would also severely harm Europe’s strategic autonomy and thus EU-based companies.”