Technology October 2022

Privacy Matters

The EU Proposes to Screen Your Personal Messages

Written by Celes Keene

The Council of the European Union, or EU, has proposed a life-changing regulation that would allow it to screen your direct messages. Under the proposed regulation, the EU would be allowed to screen messages you send on platforms such as Facebook, iMessage, and WhatsApp for the purpose of detecting “grooming.”

EU to screen messages for potential grooming
“Grooming” generally refers to the actions taken to prepare a minor into a sexual relationship with a pedophile. Typically, this may be established through gaining the minor’s trust via gift-giving, support, or attention. Grooming can happen online or
in-person and has become a growing concern as pedophiles have unfettered access to vulnerable minors via chat rooms, social media, and mobile games. Combined with the advent of “catfishing,” where a person can use fake photographs and/or profiles to pose as someone else online, parents and guardians now have their hands full in warding off these relationships.

The EU looks to combat this by giving law enforcement agencies the power to review direct messages for grooming. This means that both the text and photographs you send via direct messages would be subject to review in the EU. This is a significant step beyond measures that are already employed online to combat the distribution of child pornography. Currently, law enforcement agencies already have the power to step in when they detect child pornography is being disseminated via electronic means. But with this new EU regulation, authorities would move from the black-and-white of what constitutes child pornography to the gray area of what qualifies as grooming.

EU to screen messages using artificial intelligence
This idea is further muddied by the EU explaining that it would be using artificial intelligence that cannot “understand” the content of your messages but instead looks for “pre-identified patterns” that indicate grooming. Consequently, it logically follows then that an artificial intelligence that does not understand the “content” of your messages would similarly lack the ability to comprehend “context.” Recognizing this concern, the council explained that human review would step in after the artificial intelligence flags the messages, but this takes us back to initial concerns about privacy.

In response, the EU stated that the regulation requires the “least privacy-intrusive” means as possible to be used when carrying out such a directive. Further, the EU stressed that an order of “detection,” which would be limited in time and scope, would be required before messages can be scanned. As these orders would be issued by courts, it would be arguably subject to stringent requirements. Critics of the regulation note, however, that most criminals are already using different channels to avoid detection by authorities in the first place, and as such, this proposed EU regulation would only intrude upon the privacy of law-abiding citizens.

Key takeaways on EU’s proposed regulation to screen messages for grooming
The EU has proposed a regulation to scan direct messages for grooming, which will:

  • Require a “detection” order issued by a court before conducted;

  • Be required to be carried out by the “least privacy-intrusive” measures possible; and

  • Rely mainly on scanning by artificial intelligence with subsequent review conducted by a human.

The text of the EU’s proposal can be found at: document/ST-8468-2021-REV-1/en/pdf. TBJ

This article, which was originally published on Klemchuk’s Ideate Blog, has been edited and reprinted with permission.

Headshot of Celes KeeneCELES KEENE is of counsel to Klemchuk in Dallas. Her practice focueses on intellectual property and internet law, e-commerce, and data privacy. Keene has also served as in-house counsel in the telecommunications industry.

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