Suspicionless Chatcontrol Must Be Taboo in a State Governed by the Rule of Law

Germany doesn’t have a constitution, but surveillance without grave suspicion is already illegal, hence the references to rule of law.

It's questionable whether Chat Control would have survived an engagement with the EU's can't-believe-it's-not-a-constitution (to avoid annoying eurosceptics, efforts to recast the treaties as a constitution were abandoned); other mass-surveillance-y stuff, notably the Data Retention Directive, were nuked by the ECJ.

Already done!

> However, Finland cannot support the most recent compromise proposal because it contains a detection order that has been found problematic from a constitutional standpoint.

https://valtioneuvosto.fi/en/-/ministerial-committee-on-euro...

(Now the challenge is just holding politicians to it.)

One of the founders of the United States Thomas Jefferson was a pretty big encryption enthusiast. He invented[0] his own disk cipher that is on display in the National Museum of Cryptography. The concept of Americans sending encrypted messages had been normalized since before the United States existed. People have always been able to send each other handwritten letters securely encrypted with OTP's / etc.

0: https://en.wikipedia.org/wiki/Jefferson_disk

I think you are mixing two separate things: rule of law vs privacy.

Sure, we didn’t have encrypted communication a couple decades ago, but we did have an expectation of privacy: letters, phone calls, even in-person conversations.

Encryption is just the modern way of preserving that same right in a digital context.

People in China have every packet inspected and injected with a malicious payload if it doesnt suit their government. They may get a knock at the door if they say something bad. It also restricts free access to information.

They dont just “feel” oppressed, they are.

> The notion of encrypted private communication didn't exist a couple of decades ago

Nor was pervasive monitoring of our every action, nor were our actions and daily lives conducted on a digital system that makes data storage trivial.

This comment is an irrelevant distraction. Why should the feelings of Chinese citizens have any relevance for a discussion of the democratic values of EU policy? China is a de facto a dictatorship. Xi Jinping's thoughts have been made part of the Chinese constitution.

The "device" is backdoored. People must be responsible for their own security. Sad, but true. Learn GPG people.

Between a surveillance state where every communication is siphoned up, fed to LLMs, and used to target random people not already under suspicion... and a world where at the very least there needs to be some documented/auditable/accountable/whistle-blowable process of identifying an individual target and serving, say, a warrant to a third-party chat company... the second world has something of a "damping function" that slows the acceleration of authoritarianism. While far from ideal, it's better than the first option, which ChatControl was laying the groundwork for.

Electronic communications surveillance shall be governed by the same rules that apply to the post.

As an aside, “suspicionless” is a bad translation of what would correctly translate to “without cause”.

I agree that there shouldn’t be a backdoor by default. But, for example, planting a modified app update with backdoor on the device of a suspected high-risk felon, based on a court warrant, is something that can be more reasonably debated.

Agreed. Some people say “I don’t have anything to hide”, but the actual fact is they don’t have anyone to hide from. It just takes one election, or a couple of years of political distress leading to a coup and you can find yourself on the other side from the government. You might find that the “normal” things “everyone” believes aren’t so well tolerated anymore, and things like laws turn out to be a little less powerful than you were promised. Once the infrastructure is built out, it’ll turn out the bad guys are perfectly capable of using it to suit their needs.

Good call, it is a weasel argument. Our current government coalition in Germany that is "against" it for publicity reasons use the exact same terminology. It just postpones the chat control issue though.

Slamming the door and making noise here is the way to go because your officials are dishonest about their intentions.

Many consumer devices can be selectively targeted for updates. The entities that control the update servers are controlled by the states that they are a part of. People seem to have forgotten that companies once felt the need to invent warrant canaries to warn when they had received non-public court orders. Presumably they can also be forced not to remove the warrant canary.

Edit: My first read had me interpret backdoor as any undetected means of gaining access to a device/system. I have updated by definition to mean using a flaw in the system left intentionally to gain access. This somewhat negates the need for my previous comment, but I'll leave this for illustrative purposes.

> There must not be a way to backdoor user devices, under any circumstances.

One can make an argument that if there is strong evidence that someone is planning to commit an unusually serious crime, e.g. a terrorist attack, then secretly installing surveillance software on their device is warranted.

I would also add that this surveillance operation can't be used to collect any other data which is unrelated to the suspected serious crime (like terrorism), and if such data is collected by accident, that it can't be used as evidence in court. (I'm very sure that this is currently perfectly legal in the US, which sounds pretty bad.)

Backdooring isn't OK because by definition you cannot selectively backdoor someone's phone, you need to have it backdoored by default to exploit it later, which is obviously terrible.

Wiretaping a suspect's phone on the other hand is a fine (and often necessary) police operation, as long as it must be approved by an independent magistrate.

Exactly, and "suspicion" is a slippery slope, it can and will be defined so vague to become a useless restriction.

"Suspicionless" is poor translation of "Anlasslose" which would more appropriately translated as "unfounded" in order to convey the uncommitted nature of "anlasslose". "Anlass" in this context is literally "reasons".

Because the language is far clearer in the US, you would and do hear "warrantless" being used in both the legal and general sense when it comes to these topics, but translating "Anlasslos" as "warrantless" would imply far too much confidence than is given.

"Unfounded" also reflects the weak perspective on hard boundaries of law and limitations on the state that simply do not exist in Germany and effectively all of Europe in the way that they do in the USA as de facto immovable law of the Constitution. "Anlasslos" implies a mental framework and conception that defers your rights (free speech in this case) to the subjective judgement of various people like politicians, judges, technocrats, bureaucrats, regulators, police officers, etc., i.e., someone does not like your speech so they will monitor your communication with our grandma for the abusive and narcissistic, manipulative concept of "hate speech", aka. "speech I hate".

We have infrastructure and precedent for it, you should need a warrant.

By requiring a court warrant for installation of a backdoored app update (or OS update). This is analogous to tapping a phone line.

You lose some civil rights when you decide to become a criminal (or join the Army). ;-) One of the things courts are allowed to do to a criminal is force them to wear a GPS tracker on their ankle, as a method of enforcing that they are not within some distance of an elementary school. It would not be so different to force them to install software on their phone, and the analogy to forcing everyone to wear a GPS tracker is clear. Your civil rights include not being told where to go, something you also lose as a criminal (or a soldier, obviously). It is how civil rights work in our society. Authoritarians want to turn everyone into criminals or permanent soldiers.

Feel free to share all your personal information if that is your preference. You don't get to have mine.

All information? Including private thoughts?

How much information exactly do we need to make people stop believing the Earth is flat?

Until the state itself makes an informed decision on you, based on you religion, political ideas etc, and you are no longer free to make any decision any more, informed or not.

But more than that, even if you had all the information available, it will still be drowned in order of magnitudes higher amounts of counterfeit information, propaganda, lies.

Please enumerate some of the benefits that would come from a world where such radical transparency was realized.

So you have a camera in your bedroom, streaming all the time.

You will not find perfection, but Canada, anything in EU, Japan, the US, New Zealand all come to mind (and several more that I am not confident I can spell) as places where rule of law happens. Countries like Brazil and India probably belong on the list despite some faults.

Yes but this sort of wording might suggest they want just small changes. We must keep the pressure.

Keep up the pressure. Write to your representatives. Write and inform the public. Never think somebody else will do it for you. Vote for the right party.

https://edri.org/

https://noyb.eu/en

https://www.eff.org/

Just my personal, not fully conceived opinion:

ChatControl cannot exists without criminalizing cryptography (crypto with backdoors is not crypto).

When the act of uttering sufficiently complicated mathematics is a crime, we entering the territory of absurdity.

Such laws cannot be enforced. Enforcement can only be arbitrary.

Nope:

The rule of law establishes, first of all, that the Law does not distinguish any kind of person from another. This is why in order to have a true Rule of Law, the three powers (Legislative, Executive, and Judiciary) must be truly separated.

Decrees are exactly one way to subvert it: the executive acts as the legislative.

Also, in tyrannies (vid. Venezuela, Iran, etc.), the Judiciary is a slave to the executive.

The rule of law states, first of all, that people in Government are subject to the same laws as any other citizen.

It is obviously an unreachable optimum (like true "democracy" is), but that is the basic principle. Not that "Laws" govern the place.

Chat Control (and see especially the Danish Minister who said "common citizens should not expect to be able to use cryptography" or words to that effect) is suspicious under the rule of law because it differentiates ipso iure between "ordinary citizens" and "the executive".

Edit: whether you agree with him or not, reading "The road to serfdom" should enlighten you a lot about this topic.

> Good for Germany and the EU, but how (or why) is the rule of law supposed to make it a taboo? Is it thrown in just to sound nicer, or did they skip a few steps in the reasoning?

Don't thank Germany too early. The only reason they changed their tune is because a massive number of people reached out to the government representatives in the last few days/weeks.

Without that, it would have gone through.

Case and point, you can look at the timeline of each country's position on https://fightchatcontrol.eu and you will see that Germany went from opposing to undecided to opposing again.

This is the sad state of affairs today. Privacy and rule of law have nothing to do with it.

I personally reached out to many German MEPs and the only ones who bothered to respond and were against CC were from the AFD. Make of that what you will.

This kind of mass surveillance is already illegal in Germany, and had Germany voted yes, it would have meant that politicians act against the law, which would be the opposite of the rule of law.

> how (or why) is the rule of law supposed to make it a taboo?

I'd assume because this means someone has to be officially suspected of a crime, rather than being targeted just because someone didn't like them?