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Guilty until proven innocent – The flawed logic of the EU’s proposed child safety law – EURACTIV.com | #childsafety | #kids | #chldern | #parents | #schoolsafey

The European Commission’s proposed child sexual abuse law pursues the important goal of combatting child sexual abuse material online, but the proposal’s aims risk being undermined by the threat it poses to fundamental rights and the rule of law, writes Sarah Farndale.

Sarah Farndale is a freelance communications specialist based in Brussels, working with NGOs, non-profits, industry associations and international corporations.

The proposed law is drawing ire from, among others, the EU’s top privacy watchdog, as well as the UN’s human rights chief, numerous leading computer scientists, and civil society – including children’s rights NGOs – who point to its over-reliance on unreliable technologies, as well as its threat to break end-to-end encryption.

But what has – alarmingly – received less attention is the fundamental risk that the proposal poses to basic tenets of criminal law, such as the need for a warrant based on established suspicion before searching someone’s home or belongings and the presumption of innocence. These principles are essential to preserving a criminal justice system based on the rule of law and are as crucial for victims as for the accused.

The proposed law, if not altered, would introduce warrantless digital searches. An individual’s WhatsApp, Signal, or Facebook account, including all private messages and potentially audio recordings (the awful idea of inclusion of audio in what would be at-scale phone tapping has appeared in versions of the text), could be searched.

The draft law allows for searches to be issued based on a risk assessment of the platform – not of individual accounts. So individuals’ private messages could be searched, not because the company nor law enforcement have any reason to believe that they are involved in child sexual abuse, but simply because they used that service.

This means that millions of innocent people’s accounts can be searched and accessed by social media companies and law enforcement staff without any reasonable suspicion of wrongdoing.

We would never accept police searching our homes without a warrant, and given just how much of our daily communications are now carried out online, we certainly should not allow warrantless searches of our online communications. Warrants should be non-negotiable; they protect the integrity of evidence for victims to seek justice, and they also provide a crucial limit on police power.

The draft law’s over-reliance on error-prone and unfeasible technologies means a high chance that your content, following a  warrantless search, has been flagged as criminal content, is wrongfully forwarded to law enforcement.

This reliance on such unreliable technology is also the proposal’s most serious shortcoming for victims: false-positives would flood the system leaving already over-stretched investigative bodies under too much strain to react in real-time to genuine cases of abuse.

Such a system would also completely undermine the presumption of innocence. A system based on a presumption of guilt allows those in power to weaponise the legal system. It would be all too easy, with no need to provide evidence, to ruin an individual’s life and career by levelling a mere accusation against them.

Of course, no rights are absolute, which is why international and European human rights law has developed principles to help navigate the balancing of rights. However, this does not mean, as it has all too often been framed, – a privacy vs. child protection balance. Such an approach betrays the crucial point that children’s rights include privacy rights for very important reasons.

These safeguards are particularly vital for children in vulnerable situations, such as migrant children with an irregular status whose exposure to law enforcement could have very dire consequences for them and their families. Furthermore, warrantless and indiscriminate searches would inevitably lead to the wrongful categorisation of consensual sharing of images between youths being flagged as content to be reviewed.

Privacy and rule of law safeguards are there to protect children, in particular the most vulnerable and so cannot be reduced to a false choice between privacy and protection.

How might the current proposal be brought into conformity with human rights law? CDT Europe is advocating to replace ‘detection orders’ with ‘detection warrants’. The warrants would narrow the scope of the searches in three ways.

Firstly, a warrant would be formulated with sufficient precision to ensure that people whose conduct in no way involves suspicion of criminal activity would not fall within the scope of the searches.

Secondly, an independent judicial authority would need to issue an official document or note of verbal instructions describing the specific purpose and scope of such searches, including the basis upon which the individuals or groups of people concerned are suspects.

Thirdly, a proportionality test would have to be in-built – the law must allow for an independent assessment of whether the interests of the criminal investigation override the public interest in a specific case.

This necessarily involves notification of all individuals concerned that their accounts are subject to such a search. For example, whether it involves the protection of journalistic sources. Under the current proposal – given the sheer breadth of the surveillance mandate that would be issued – there would be a high risk that accounts of journalists and other actors be scanned, despite there being no reasonable suspicion of their involvement in any wrongdoing. This poses a threat to democracy itself.

The right to presumption of innocence, and the protection against mass surveillance have existed for generations for good reason. They constitute key pillars of a democratic society. Warrantless searches have no place in a democracy, online or offline.

Child sexual abuse: leading MEP sceptical of technical limitations

As the European Parliament’s published its draft report on the proposal to fight child sexual abuse material (CSAM), the rapporteur shared with EURACTIV his vision about the key aspects of the file.

Javier Zarzalejos is an influential voice inside European People’s …

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