ENCRYPTIONFighting European Threats to Encryption: 2023 Year in Review

By Christoph Schmon, Joe Mullin, and Paige Collings

Private communication is a fundamental human right. In the online world, the best tool we have to defend this right is end-to-end encryption. Yet throughout 2023, politicians across Europe attempted to undermine encryption, seeking to access and scan our private messages and pictures. 

But we pushed back in the EU, and so far, we’ve succeeded. EFF spent this year fighting hard against an EU proposal (text) that, if it became law, would have been a disaster for online privacy in the EU and throughout the world. In the name of fighting online child abuse, the European Commission, the EU’s executive body, put forward a draft bill that would allow EU authorities to compel online services to scan user data and check it against law enforcement databases. The proposal would have pressured online services to abandon end-to-end encryption. The Commission even suggested using AI to rifle through peoples’ text messages, leading some opponents to call the proposal “chat control.”

EFF has been opposed to this proposal since it was unveiled last year. We joined together with EU allies and urged people to sign the “Don’t Scan Me” petition. We lobbied EU lawmakers and urged them to protect their constituents’ human right to have a private conversation—backed up by strong encryption. 

Our message broke through. In November, a key EU committee adopted a position that bars mass scanning of messages and protects end-to-end encryption. It also bars mandatory age verification, which would have amounted to a mandate to show ID before you get online; age verification can erode a free and anonymous internet for both kids and adults. 

We’ll continue to monitor the EU proposal as attention shifts to the Council of the EU, the second decision-making body of the EU. Despite several Member States still supporting widespread surveillance of citizens, there are promising signs that such a measure won’t get majority support in the Council. 

Make no mistake—the hard-fought compromise in the European Parliament is a big victory for EFF and our supporters. The governments of the world should understand clearly: mass scanning of peoples’ messages is wrong, and at odds with human rights. 

A Wrong Turn in the U.K.
EFF also opposed the U.K.’s Online Safety Bill (OSB), which passed and became the Online Safety Act (OSA) this October, after more than four years on the British legislative agenda. The stated goal of the OSB was to make the U.K. the world’s “safest place” to use the internet, but the bill’s more than 260 pages actually outline a variety of ways to undermine our privacy and speech. 

The OSA requires platforms to take action to prevent individuals from encountering certain illegal content, which will likely mandate the use of intrusive scanning systems. Even worse, it empowers the British government, in certain situations, to demand that online platforms use government-approved software to scan for illegal content. The U.K. government said that content will only be scanned to check for specific categories of content. In one of the final OSB debates, a representative of the government noted that orders to scan user files “can be issued only where technically feasible,” as determined by the U.K. communications regulator, Ofcom. 

But as we’ve said many times, there is no middle ground to content scanning and no “safe backdoor” if the internet is to remain free and private. Either all content is scanned and all actors—including authoritarian governments and rogue criminals—have access, or no one does. 

Despite our opposition, working closely with civil society groups in the UK, the bill passed in September, with anti-encryption measures intact. But the story doesn’t end here. The OSA remains vague about what exactly it requires of platforms and users alike. Ofcom must now take the OSA and, over the coming year, draft regulations to operationalize the legislation. 

The public understands better than ever that government efforts to “scan it all” will always undermine encryption, and prevent us from having a safe and secure internet. EFF will monitor Ofcom’s drafting of the regulation, and we will continue to hold the UK government accountable to the international and European human rights protections that they are signatories to. 

Christoph Schmon is EFF’s International Policy Director. Joe Mullin is a senior policy analyst at EFF, where he works on patents, encryption, platform liability, and free expression online. Paige Collings is the Senior Speech and Privacy Activist at EFF, where she focuses on the fulfilment of civil liberties and corporate threats to speech and privacy online. This article is published courtesy of the Electronic Frontier Foundation (EFF). This blog is part of our Year in Review series. Read other articles about the fight for digital rights in 2023.