EU’s Council is again pushing for the new chat control regulation to allow the bloc’s police to order internet companies to scan people’s private communications for illegal content in “parts of a service” for a period of time, rather than having to obtain a warrant to target a specific suspect.
This is one of the three key points from a note (PDF) prepared for the sixth and potentially final trilogue on the legislation, also known as Chat Control 2.0, that is to take place on Tuesday, 29 September. The document, dated September 18, was leaked from the Council and is marked as a “presidency note.”
The Council, the European Parliament (EP) and the European Commission (EC) will be negotiating behind closed doors, with the latter represented by Commissioner for Internal Affairs Magnus Brunner.
The other two key points are that the Council believes limiting searches to specific suspects would “not generate any added value compared to the possibilities already existing under criminal law,” and that it wants the scope of the new rules to remain broad, covering not only known illegal photo and video content, but also new material, and “the solicitation of children.”
The note is based on previous discussions and reveals that the EP is willing to accept an approach that requires search plans, but with the caveat that they must be “targeted” and subject to review by judicial or independent administrative authorities.
The Council, however, wants searches to be authorized in “parts of a service or, where possible, to individual users,” and that the search plan would have to include the technologies used and other relevant safeguards, again subject to review.
The note reveals that the Council also wants to make sure that any mechanism to review and possibly suspend searches “should operate in a manner that does not deter providers from carrying out own-initiative searches.”
As a last resort, the Council will ask member states if they would be willing to drop “own-initiative searches or detection orders on non-public content” from the scope of the regulation – but only if no other compromise can be found “providing at least for the same level of effectiveness as the current voluntary practice.”
Former German member of the European Parliament for the Pirate Party Patrick Breyer has no doubt that what is being proposed is “mass surveillance by another name,” and that the goal of the Council, Commission and some member states is to “permanently normalize mass surveillance across Europe.”
Breyer said that the proposal to scan “parts of a service” would in reality mean that “every user in the EU” would be subject to this.
And, he noted, this is not a new system that would replace the old one, but would rather exist in parallel with it. The old system, meanwhile, “is a proven disaster,” the former MEP said, revealing that in Germany, over half of investigations target minors for “consensual sexting” while 75 percent of flagged chats are “not actionable.”
The Council’s own legal service has in the past said that scanning an entire service or parts of it is “highly probable” to be found “general and indiscriminate” surveillance, and therefore unlawful.
