Certain groups of people will escape this control, in particular soldiers, security forces, but also EU employees.
A narrowly selected section of the public will therefore not be monitored, as the authors have apparently concluded that EU employees – including politicians and civil servants – are not inherently suspected of child abuse.
This is not changed by the fact that Denmark currently holds the presidency of the Council of the EU and is pushing ahead with the legislation in question, even though former Danish Minister of Industry Henrik Sass Larsen was sentenced to four months in prison for possessing thousands of images of child sexual abuse.
The judge points out not only the hypocrisy
The judge and member of the Judicial Council of the Slovak Republic, Dana Jelínková Dudzíková, pointed out this and similar absurdities in the planned draft.
Judge Jelínková Dudzíková points out the contradiction that European Commission President Ursula von der Leyen refused to disclose the contents of her phone amid allegations of massive corruption in the purchase of vaccines, but when the regulation is adopted, it is the Commission that will issue guidelines for the monitoring of mobile phones.
In addition to the obvious hypocrisy, Judge Dudzíková also points out that many member states have concerns about the regulation violating the right to privacy. The judge reminds us that this is not only about the violation of privacy, but also about banking and tax secrecy, which is often the subject of communication.
The regulation and its implementation in the EU legal area are based on Directive 2011/93/EU of the European Parliament and of the Council of December 13, 2011, on combating the sexual abuse and sexual exploitation of children and child pornography, and on data from the National Center for Missing & Exploited Children (NCMEC).
Massive surveillance based on unknown data
The judge in the NCMEC data case says that the center has recorded one million reported suspected cases of child abuse in EU member states. Although the authors of the proposed regulation rely on this data, they have not specified which member states are involved or how many reports there are. In other words, whether the problem exists equally in all countries or only in some countries with a high number of suspected cases.
This fact is crucial in assessing whether a change in legislation is needed at EU level or whether only certain countries need to improve the protection of minors.
Dudzíková, a member of the Judicial Council of the Slovak Republic, says that the EU Center for the Prevention and Combating of Child Sexual Abuse will employ experts to monitor compliance with the regulation. However, the regulation itself does not contain “any specific requirements” for these individuals and merely refers to the need to have “budgetary, administrative, and management skills.”
According to Dudzíková, these officials, without any particular specialization, will “create a database of harmful algorithms and serve as a unified communication channel through which everything will be reported, including detailed transcripts of conversations.”
Officials will contact children, data will be shared with non-governmental organizations
Dudzíková goes on to say that officials “can contact minors through operators without involving their parents” if they suspect that the child is being abused. However, the massive surveillance will be carried out by artificial intelligence, which may incorrectly assess whether an illegal act has taken place at all.
The following procedure is also controversial: If a child confirms abuse to the center's staff, but in reality no abuse is taking place, it is unclear how, who, and on what basis these facts are assessed.
According to the judge, abuse of the entire system is also extremely dangerous, namely in the form of another person posing as a center employee to the child in order to abuse the minor.
The judge finds it shocking that “this information can be manipulated for scientific and research purposes and used in such a way that it can be passed on to non-governmental organizations, shared to a certain extent (which is not specified) and passed on to other semi-open and semi-public companies.”
Contradiction with ECJ case law and many areas of law
In terms of funding, the center will be under the authority of the European Commission, which will issue guidelines on the regulation. Each member state will have its own coordination centers that can request information from this center, which will provide it free of charge whenever possible.
According to Judge Dudzíková, this may mean that “it cannot be ruled out that Member States will be required to pay for the services of this center in order for it to assist them in fulfilling the tasks arising from this regulation.”
The judge also points out that massive blanket surveillance is prohibited by the case law of the Court of Justice of the European Union because it is incompatible with fundamental rights. From a legal point of view, the regulation not only violates the case law of the courts, but also interferes with criminal, consumer, and family law, according to Dudzíková.
In this context, Dudzíková expressed concern that, due to incorrect assessments by the center, children could be taken away from their parents, who may be completely unaware of any problems throughout the entire process, as the center can be completely bypassed in communications with the child under the regulation. In addition to the right to privacy, the regulation will also interfere with the right to protection of personal data, freedom of expression, and freedom of information dissemination.
The regulation is also problematic from a consumer protection perspective, as users of individual services will be “forced” to agree to voluntary monitoring of their messages if they want to communicate remotely. Since the regulation will apply throughout the EU, citizens will have no choice but to submit to compulsory monitoring. Such practices are contrary to consumer rights.
Just one step away from illegal criminalization
In connection with the controversial regulation, the judge also refers to a practical example of how easy it can be to criminalize a person. When communicating with family members, it is common for them to send each other photos and videos of vacations or other activities. If a minor child is seen in the sea in such a photo or video, the system may interpret this as “child abuse.”
Artificial intelligence is not able to reliably distinguish between sending family photos with a child and their actual illegal distribution for pornographic purposes. If the system also classifies a family photo as a criminal offense, the persons concerned are immediately suspected of distributing child pornography. It goes without saying what a fundamental impact this can have on the life of an innocent person.
Currently, the consent of a court is required for the surveillance of individuals. The regulation places the EU and its officials above the courts and no longer requires consent. On the contrary, it will be the national courts that will forward communications to officials with dubious professional qualifications.
No control and the end of the GDPR
Jelínková Dudzíková goes on to say that sensitive data and conversations containing, for example, medical facts or content of a similar medical nature will also be controlled by unknown persons at the center, which is inadmissible from a legal point of view.
The judge goes on to ask: “How can a user of the service—even an adult who is being monitored—check what personal data the EU center has collected about them, and how can they exercise their right to have this data deleted? The Chat Control Regulation turns data protection authorities into toothless statisticians and the GDPR into a piece of paper.”
There are countless possible scenarios for abuse of the system, unjustified interference with individuals' rights, and obviously unlawful measures resulting from the regulation. The area of political rights, professions where confidentiality of communication is crucial—such as journalists—but also other sensitive authorities in the member states.
All these areas offer endless possibilities for how communication surveillance can lead to a clear violation of individuals' rights.
Dictators would welcome the draft regulation
Orwell's plan for perfect surveillance of the population simply interferes in every area of citizens' lives, and their communications are no longer private. Although there is no data to support these practices, this does not seem to bother European lawmakers.
The noble idea of protecting children is enough for them. For absolute control over all communications in Europe. This paragraph underscores the absurdity of the entire proposal.
Of course, the protection of children only applies to “normal people.” According to the regulation, children do not need to be protected from a select group of EU officials. Unlike the “rabble” that feeds them, these officials have a right to privacy.
The regulation contradicts the case law of the European courts, which states that rights may only be restricted if this is necessary in a democratic society. In a democratic society, it is by no means necessary for officials and non-governmental organizations to constantly monitor and assess whether the population is “obedient” enough.
The comprehensive surveillance of citizens by European officials directly implies that everyone is suspected of sexually abusing children and must therefore be monitored. Chat Control gives the European Commission and the new center in The Hague enormous powers, while member states lose control.
However, it is the citizen who loses the most—many of their rights and their privacy. They find themselves in the position of a character from Orwell's novel, while every dictator in the world pales with envy at how brilliantly the officials in Brussels have thought this through.
