A cross-party group of MEPs has today written to the Oireachtas Justice Committee to highlight their concern at the approach being taken at EU-level by the Irish Government in regard to the European Commission’s proposed Regulation laying down rules to prevent and combat child sexual abuse.
The letter, signed by Irish MEPs Clare Daly and Mick Wallace, along with Cornelia Ernst (Left Group Shadow on the file); Patrick Breyer (Shadow for Greens/EFA) and Paul Tang (Shadow for S&D), highlights that the proposed regulation ‘represents a severe and thoroughgoing risk to a range of fundamental rights’. It goes on:
‘We have been very surprised, in light of the clear and deep concern in regard to the proposed regulation expressed by the [Oireachtas Justice] Committee (a concern which we share), that the Irish government’s position in Council has been one of unqualified support for the proposal. Indeed, Ireland has led the charge for the most extreme version of the proposed regulation in Council, in opposition to what became a blocking minority of states (who share many of the concerns expressed by a majority of members of the Oireachtas Justice Committee, including members of the government).’
Said Clare Daly, ‘It is absolutely shocking that the Irish Government has not taken a stronger position at Council against this ill-conceived, unprecedented and dangerous regulation. Given its own Justice Committee, which contains a majority of government TDs, was unequivocal in its opposition to the legislation, it’s hard to shake the concern that the Irish government is doing one thing in public, and something else entirely behind the closed doors of the Council. We need answers on this, and we need the government to come clean and tell us why they’re not supporting Germany, Austria, France and others in trying to make this regulation compliant with fundamental rights. The need for this is all the more acute given recent scandalous revelations in regard to the most staggering levels of shady dealing that went on in the Commission before this regulation was proposed.’
On 19 October, the European Council failed to adopt a position on the proposed regulation, as the required qualified majority of Member States for the highly controversial and unprecedented regulation could not be found. This was the second time the Council had failed to adopt a position on it. States such as Germany, Austria, Poland, Estonia and France are opposed, while Ireland, to date, has been very much in favour.
The so-called ‘child sexual abuse regulation’ is one of the most controversial pieces of legislation ever to have been tabled by the European Commission. The legislation will, if enacted in its current form, mandate mass, indiscriminate scanning of all private communications in the EU, including encrypted communications. It has faced unprecedented pushback from human rights and privacy campaigners, as well as the public. As well as campaigners, the proposal has been trenchantly criticised by the European Council’s own legal service, which - in a rare major critique of a legislative proposal – warned of a ‘serious risk’ of generalised monitoring, undermining encryption and violating the very ‘essence’ of the right to privacy. It has been heavily criticised by the European Data Protection Board, and the European Data Protection Supervisor, and the European Commission’s own regulatory scrutiny board (RSB) warned before the law was officially proposed that it might amount to unlawful general monitoring.
In May 2023, the Oireachtas Justice Committee submitted a political contribution to the European Commission on the proposal. It is extremely rare for an Oireachtas Committee to take such a step in regard to a piece of European legislation. The Committee outlined a wide range of concerns in regard to the law, stating that ‘it is extremely intrusive in terms of people’s right to privacy, confidentiality of communications, data protection and right to freedom of expression,’ and adding, ‘The Committee believes that effective child protection will not be served by a counter-productive regulation, only for it to be later struck down by the courts.’
Despite this, the Irish Government has not taken a position at Council in opposition to the most controversial parts of the law - mass scanning of private communications, and the breaking of encryption to do so. It is these aspects that pose the gravest threat to ‘the essence of the right to privacy’, as the Council legal service put it. The records of Council Working Group meetings published by German outlet Netzpolitik show that Ireland is systematically the first Member State taking the floor to support – unconditionally – the presidency’s proposal, even though such proposals always go in the direction opposite to the Oireachtas Justice Committee’s opinion.
Said Daly, ‘It looks very much like the Irish Government is trying to have its cake and eat it in regard to this deeply unpopular law, with one position being taken by the Justice Committee (with the support of Government TDs), and a wholly different one being taken when nobody is looking. It’s not good enough. Apart from the gross violations of basic rights this law will bring about, the degree of scandal that has now emerged over the drafting of the law by the Commission means the Government now has no option but to change course at Council.’
In October, a group of NGOs wrote to the European Commission to express their concern at allegations of undue and privileged access for certain stakeholders - including AI companies who stood to profit from it - to the Commissioner and staff drafting the regulation, as well as additional allegations that DG HOME engaged in the unlawful and unethical micro-targeting of adverts on social media platforms in relation to this same law. They describe ‘what seems to be a systematic failure of DG HOME to abide by Commission rules and principles around ethics, the better regulation agenda, and the protection of personal data’.
At issue in the NGO letter were two articles - in the first, on 7 October, an investigative journalist published evidence indicating that the US ‘not-for-profit start-up’ Thorn played a significant role in the drafting of the text of the CSA Regulation. As well as being a ‘charity’, Thorn also develops and sells the scanning software that would be needed to scan communications if this regulation became law. The 7 October article includes evidence that DG HOME officials and Thorn staff collaborated closely, and that Thorn was able to influence the draft regulation in order to fit their commercial interests. A second article, published five days later, revealed that the Commission had paid for a micro-targeted social media advertising campaign in support of the Regulation, targeting specific Member States right after they declared scepticism in regard to the law. These ads have been described as ‘manipulative’ and suggest that critics of the proposal don’t want to protect children from abuse.
These were not the only allegations being levelled at the Commission. A lengthy investigative piece by a consortium of journalists, published in September, related a hair-raising narrative of conflicts of interest and undue influence, with the Commission working hand-in-glove with vested interests in drafting the Regulation, and caught in a web of big money, front groups, and security agencies, all away from public view. Were this a story about a national government rather than the European Commission, that government would be facing street protests and motions of no-confidence, such is the level of scandal involved.
Said Daly, ‘My own view is that this proposal should be torn up and binned - there’s no salvaging it, and the revelations in regard to the circumstances in which it was conceived and drafted are such that it will be forever tarnished. The Irish Government needs to stop talking out of both sides of its mouth on this, and at the next Council vote pledge its support to the blocking minority of states who are, rightly, against this madness.’
The European Parliament last week adopted its mandate for negotiations with the Council, with a comprehensive majority showing strong support for a position that removed many of the thoroughgoing risks to fundamental rights in the Commission’s proposal. German MEP Patrick Breyer, who has been one of those leading the fight against the proposed regulation, and who is Shadow Rapporteur on the file for the Greens/EFA Group, said of the Parliament’s pushback against the regulation:
‘Governments must finally accept that this highly dangerous bill can only be fundamentally changed or not be passed at all. The only way forward with this dystopian Chat Control bill, both politically and legally, is to remove indiscriminate mass scanning and end-to-end encrypted services from the proposal. No child is helped with legislation that will inevitably fail in court even before its implementation. The suspicionless, error-prone screening of private messages is the most toxic part of the draft regulation, but the problems go far beyond that. We therefore need a new approach that focuses on preventive child protection instead of mass surveillance and paternalism!’
Read the MEPs' letter here.
See also:
Annex 1 – 2023-04-26_Council_Legal-Service_CSAR_8787
Annex 2 – CSAM-Joint-call-for-safeguarding-encryption-and-limiting-detection-orders
Annex 3 – Who Benefits – Child Sexual Abuse Regulation
Annex 4 – EP mandate child sexual abuse regulation
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