EU plans to expand chat control

According to a survey by the Swedish Presidency, which was answered by 20 EU member states, many EU states want to expand the controversial plans for so-called chat control. Ten countries spoke out clearly in favor of monitoring audio communications in order to combat child sexual abuse. On the other hand, six countries, including Germany, expressed concerns and are more inclined to oppose this proposal. Seven Member States have not yet taken a position on this issue.

Controlling and monitoring these communication channels, also known as “chat control“, also presents a significant challenge. While text messages can be scanned for inappropriate or illegal content with relative ease, the Monitoring audio content is technically much more difficult, and error-prone.

In Slovakia, interception of audio communications would “constitute the most serious interference with the fundamental rights of data subjects and an exception to the principle of confidentiality of communications” set out in the E-Privacy Directive is anchored. In addition, the relevant providers would hardly be able to create a necessary risk assessment, since the communication should not be monitored.

Spain explicitly states: “Ideally, we would prefer it to be legislated that service providers based in the EU cannot use end-to-end encryption. An alternative would be transport encryption, similar to that used in most email communications, which could be searched by the provider on their servers. However, this approach is “very controversial”.

The German government has already announced that it has “considerable concerns about the provisions on disclosure orders provided for in the draft regulation”. A high level of data protection and cyber security, including complete and secure end-to-end encryption in electronic communications, is essential for the federal government. “For this reason, Germany considers it necessary, among other things, to emphasize in the draft that no techniques may be used that disrupt, weaken, circumvent or modify the encryption“, the statement continued.

Seven member countries, including France, Austria, Sweden and Portugal, have not yet commented. It is therefore currently uncertain whether the consideration of audio communication will be included in the Council of Ministers’ negotiating position. However, should this be the case, it could likely intensify resistance to overall chat control even further.

Per Disclosure Order should enable authorities to oblige online services to automatically check the content of their users systematically and impartially. For such an arrangement, there must be a “significant risk” that, for example, depictions of abuse are disseminated via the service. Critics fear that this term could potentially apply to any service through which users share content.

The German Lawyers’ Association (DAV) shares this view and believes that the provisions are “extremely vague and also so low-threshold that they can basically be applied to all hosting and communication services, especially social networks would be.“

The ECJ assessed the handling of traffic and location data. An inappropriate and mass evaluation of content, as envisaged in the current Commission draft, would go “far beyond the previously discussed measures of the data retention“, according to the statement of the DAV. The chances of the law surviving litigation would be correspondingly poor.