Chat control: Why the federal government dispute is just a stopover

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Should messenger providers such as WhatsApp, Signal, Telegram, Threema, and others be obliged to introduce mandatory detection mechanisms for potential depictions of sexual abuse? This is the core of the current dispute about so-called chat control. And it runs right through the EU and the German government. However, even if the German government were to give its consent, nothing would be finalised.

Since 2022, the EU has been negotiating a regulation for better protection of children and young people, including when it comes to depictions of sexual abuse or pornographic images. Digitalization in particular plays a major role in this—also that children and young people are now equipped with digital devices and often become victims unknowingly. While some new regulations are therefore less controversial, such as the need to improve victim protection, the biggest point of contention is the so-called chat control.

This involves what is known as client-side scanning (CSS): providers of apps such as Threema, Telegram, Signal, or WhatsApp are to be obliged to check content automatically and on the end device that users want to send from there. And—this is also part of the considerations—possibly also submit a report to a reporting office at the EU in suspected cases. This can look at the content and inform the competent authorities in the member state if it is found to contain potentially criminal content.

Chat control overrides encryption

This is intended to circumvent the problem that some messengers effectively encrypt content for transport from end user to end user; monitoring on the line would therefore only produce data salad. This would effectively circumvent encryption, and a Trojan is forcibly implanted via the software.

There have been two diametrically opposed positions on the project in EU legislation for years: while the member states and the EU Commission's Home Affairs Commissioners appointed by them are in favor of it, the European Parliament has spoken out clearly against the automated monitoring of content on users' end devices across all political groups. The proposal for the new regulation came from the then EU Commissioner for Home Affairs, Ylva Johansson. The European Parliament's position was adopted in the previous legislative period.

Before a legislative proposal can be negotiated in Europe, a third institution must also find a position: the Council of the Member States of the European Union. However, the EU states have not been able to agree on what they want for years. This was also because Germany clearly spoke out against chat control when the traffic lights were still on.

Federal government position to be found today

The new black-red coalition under Chancellor Friedrich Merz (CDU) has not yet reached a final position. However, the CDU, CSU, and SPD have decided that Germany should abstain less often. If Germany were to agree to this, the current blocking minority in the Council of Member States would be gone, and the Council would then officially approve the proposal to introduce chat controls.

Germany would then signal its agreement in the preparatory committee of permanent representatives (Coreper) as early as tomorrow, Wednesday. In mid-October, at the Council of Telecommunications Ministers, a corresponding agreement would be reached, and Federal Digital Minister Karsten Wildberger (CDU) would agree to the Council's position.

At federal level, the Greens want to take advantage of the political turmoil and the recent vociferous protests. They want to show up the federal government with a motion for a resolution in the Bundestag. “There are serious concerns whether the Commission's proposal is compatible with applicable European law, considering ECJ case law and national constitutional requirements,” states the motion, which the parliamentary group intends to table in the Bundestag.

The authors also point out that the creation of a circumvention of encryption is “not justifiable” considering the foreign policy threat situation. They are alluding to the Salt Typhoon issue, in which allegedly state-affiliated Chinese actors are said to have used mandatory surveillance interfaces with US telecommunications providers for their purposes.

Serious encroachment on fundamental rights

It is still unclear whether this will actually happen: while the Ministry of the Interior under Alexander Dobrindt (CSU) is open to the Danish Council Presidency's proposal, the Ministry of Justice under Stephanie Hubig (SPD) in particular has strong reservations. The German fundamental right to confidentiality and integrity of information technology systems would be undermined if the content of all users were automatically searched. However, how this fundamental right relates to regulations at the European level has not yet been conclusively clarified.

Critics see the project as a door opener for the surveillance of all end devices—and thus repeat an old accusation against Ursula von der Leyen, then Minister for Family Affairs: she is creating a censorship infrastructure. Meanwhile, the current EU Commission President is keeping a conspicuously low profile in the debates surrounding chat control. The “Censursula” accusation has not been forgotten, even years later.

Controversial urgency

The extent to which there is an urgent need for action in the new regulation is controversial. An already extended but temporary transitional regulation expires next year, which allows providers such as Meta, Google, Microsoft, or Apple to voluntarily and automatically search their users' online stored content for abuse or child and youth pornographic content. So far, this has also been reported to European authorities via the National Center for Missing and Exploited Children (NCMEC) in the USA. German criminal investigators estimate that around half of the content reported to the Federal Criminal Police Office in this way is actually illegal.

Negotiations could still take years

However, even if the black-red federal government were to agree that the Council Presidency should support chat control, this would not yet be law: the so-called trilogue, the negotiation phase between the Council, Parliament, and Commission, would then follow.

In the case of particularly controversial projects, this can drag on for over a decade. Without the controversial chat control between Parliament, Council, and Commission, it would be easier to reach an agreement in good time. Parliamentarians such as SPD MEP Birgit Sippel are therefore critical of the reference from the Member States to an impending law enforcement gap; the states would then be responsible for this—who have not even been able to agree on a negotiating position for years.

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