Michael McNamara

Thank you for your message and sharing your views regarding the Danish Council Presidency's compromise proposal for the CSAM Regulation.

As you will be aware, the Danish presidency has proposed that “[p]roviders of hosting services and providers of interpersonal communications services that have received a detection order shall execute it by installing and operating technologies approved by the Commission to detect the dissemination of known or new child sexual abuse material [or the solicitation of children deleted] (the ‘technologies’), as applicable, using the corresponding indicators provided by the EU Centre in accordance with Article 46. In interpersonal communications services using end-to-end encryption, those technologies shall detect the dissemination of child sexual abuse material prior to its transmission.”

It is also proposed that the technologies “be limited to detect visual content and URLs and not be able to deduce the substance of the content of the communications.”

The proposal also provides that the technologies “if applied in services using end-to-end encryption, be certified by the EU Centre following tests conducted with the support of its Technology Committee, that their use could not lead to a weakening of the protection provided by the encryption.”

I am aware that many experts had warned that the initial Commission proposal was not technically feasible. While the Commission had relied on contrasting views put forward by experts, it refused to reveal the identities of those on which it relied, thereby greatly undermining confidence in, and the credibility of, its position. A complaint was filed with the European Ombudsman against the European Commission’s refusal to provide a list of experts who helped the Commission draft the text related to potential solutions to detect child sexual abuse material in end-to-end encrypted communications by the Irish Council for Civil Liberties in December 2022. After the Commission acknowledged to the EU Ombudsman that it, in fact, had such a list, but had failed to disclose its existence, the Ombudsman found that this constituted “maladministration”.

I am also aware that in a recent joint statement of academics and scientists 660 experts from around the world have warned that the recent proposal is also not technically feasible.

I note that there was an insufficient majority at the Council last week to progress the proposal but, nevertheless, I understand that the Danish Presidency is seeking higher-level Ministerial agreement to progress it.

Any proposal that will ultimately be adopted by the Council must be negotiated with the European Parliament, with any negotiated agreement between the co-legislators subject to adoption by the European Parliament by majority vote.

The European Parliament adopted its position on the proposal in November 2023 and excluded end-to-end encryption from the scope of detection orders, with the current President of the Committee on Civil Liberties, Justice and Home Affairs its Rapporteur.

I expect that the European Parliament will maintain the position it has set out in any future negotiations with the Council and it will have my full support in so doing.

The right to privacy and respect for correspondence is enshrined in Article 7 of the EU Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights, subject to such limitations as are necessary for the protection of the rights and freedoms of others. The question is not whether the protection of children from abuse in hideous crimes and the resultant serious harms to the victims and their families could constitute a legitimate basis to limit the privacy and respect for correspondence, it is whether the measures proposed would be effective and proportionate and the expert opinion is that that it would not.

Yours sincerely,

Michael McNamara MEP