Shortly before the likely decisive trilogue negotiations on the EU regulation to combat child sexual abuse on Tuesday, internal documents from the Council of Ministers have been leaked. They show that Member States want to enforce comprehensive surveillance of private communications using a new tactic. Under the guise of so-called search plans, EU governments are thus attempting to create a permanent legal basis for mass scans.

The plan would enable national judicial or independent administrative authorities to grant providers of chat and email services temporary blanket authorizations to scan message content. This is designed to cement the current state of temporary chat control 1.0, under which companies like Facebook and Google “voluntarily” search for abuse material. The Council insists that a permanent law must not fall short of these existing scanning practices by providers.

Former MEP Patrick Breyer warns that the search plans being considered would, in practice, mean continued scanning of millions of innocent users across parts of a service without any suspicion. The civil rights activist sees this as an attempt to simply re-label mass surveillance. He compares the approach to child protection with trying to desperately mop up the floor while the tap continues to run.

Exclude private chats?

The plan contradicts legal opinions. The Council’s Legal Service already warned against this course early on. According to the opinion, scanning an entire service or parts thereof is highly likely to violate EU law, as it could be classified by the European Court of Justice as general and indiscriminate surveillance. Breyer accuses the member states of knowingly accepting a foreseeable failure before the Luxembourg judges. If the regulation were to be judicially overturned after years of political debate, investigators would be left empty-handed in the end. Children and victims deserve legally sound measures instead of mere security theater.

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The leaked documents also reveal a strategy for the event of failed negotiations. Should no agreement be reached at the negotiating table on scanning private chats, the Irish Council Presidency has a plan B in mind: private chats would be completely excluded from the regulation. This would simultaneously leave the temporary system of chat control 1.0 as a permanent loophole for voluntary mass scans.

Breyer calls on the EU Parliament to reject a permanent regulation as long as the transitional regulation is not replaced. Around 75 percent of reported chats are legally irrelevant. In Germany, a large proportion of investigations into child pornography target adolescents themselves, for example due to consensual sexting. This flood of false alarms ties up the valuable resources of investigative authorities.

Parliament continues to advocate a position that focuses on targeted investigations and prevention. The representatives’ mandate includes security standards such as stricter privacy settings to prevent unsolicited contact. This is supplemented by targeted orders for the surveillance of private communications, which may only be issued subject to judicial review and in cases of specific suspicion against specific individuals or groups. In addition, a new EU center is to proactively search publicly accessible content for known abuse material.

(olb)