The European Union (EU) is a hotbed for tech regulation that often has ramifications for users globally.  The focus of our work in Europe is to ensure that EU tech policy is made responsibly and lives up to its potential to protect users everywhere. 

As the new mandate of the European institution begins – a period where newly elected policymakers set legislative priorities for the coming years – EFF today published recommendations for a European tech policy agenda that centers on fundamental rights, empowers users, and fosters fair competition. These principles will guide our work in the EU over the next five years. Building on our previous work and success in the EU, we will continue to advocate for users and work to ensure that technology supports freedom, justice, and innovation for all people of the world. 

Our policy recommendations cover social media platform intermediary liability, competition and interoperability, consumer protection, privacy and surveillance, and AI regulation. Here’s a sneak peek:  

• The EU must ensure that the enforcement of platform regulation laws like the Digital Services Act and the European Media Freedom Act are centered on the fundamental rights of users in the EU and beyond.
• The EU must create conditions of fair digital markets that foster choice innovation and fundamental rights. Achieving this requires enforcing the user-rights centered provisions of the Digital Markets Act, promoting app store freedom, user choice, and interoperability, and countering AI monopolies. 
• The EU must adopt a privacy-first approach to fighting online harms like targeted ads and deceptive design and protect children online without reverting to harmful age verification methods that undermine the fundamental rights of all users. 
• The EU must protect users’ rights to secure, encrypted, and private communication, protect against surveillance everywhere, stay clear of new data retention mandates, and prioritize the rights-respecting enforcement of the AI Act. 

Read on for our full set of recommendations.

Germany is a leader in privacy and data protection, with many Germans being particularly sensitive to the processing of their personal data – owing to the country’s totalitarian history and the role of surveillance in both Nazi Germany and East Germany.

So, it is disappointing that the German government is trying to push through Parliament, at record speed, a “security package” that would increase biometric surveillance at an unprecedented scale. The proposed measures contravene the government’s own coalition agreement, and undermine European law and the German constitution.

In response to a knife-stabbing in the West-German town of Solingen in late-August, the government has introduced a so-called “security package” consisting of a bouquet of measures to tighten asylum rules and introduce new powers for law enforcement authorities.

Among them, three stand out due to their possibly disastrous effect on fundamental rights online. 

Biometric Surveillance  

The German government wants to allow law enforcement authorities to identify suspects by comparing their biometric data (audio, video, and image data) to all data publicly available on the internet. Beyond the host of harms related to facial recognition software, this would mean that any photos or videos uploaded to the internet would become part of the government’s surveillance infrastructure.

This would include especially sensitive material, such as pictures taken at political protests or other contexts directly connected to the exercise of fundamental rights. This could be abused to track individuals and create nuanced profiles of their everyday activities. Experts have highlighted the many unanswered technical questions in the government’s draft bill. The proposal contradicts the government’s own coalition agreement, which commits to preventing biometric surveillance in Germany.

The proposal also contravenes the recently adopted European AI Act, which bans the use of AI systems that create or expand facial recognition databases. While the AI Act includes exceptions for national security, Member States may ban biometric remote identification systems at the national level. Given the coalition agreement, German civil society groups have been hoping for such a prohibition, rather than the introduction of new powers.

These sweeping new powers would be granted not just to law enforcement authorities--the Federal Office for Migration and Asylum would be allowed to identify asylum seekers that do not carry IDs by comparing their biometric data to “internet data.” Beyond the obvious disproportionality of such powers, it is well documented that facial recognition software is rife with racial biases, performing significantly worse on images of people of color. The draft law does not include any meaningful measures to protect against discriminatory outcomes, nor does it acknowledge the limitations of facial recognition.  

Predictive Policing 

Germany also wants to introduce AI-enabled mining of any data held by law enforcement authorities, which is often used for predictive policing. This would include data from anyone who ever filed a complaint, served as a witness, or ended up in a police database for being a victim of a crime. Beyond this obvious overreach, data mining for predictive policing threatens fundamental rights like the right to privacy and has been shown to exacerbate racial discrimination.

The severe negative impacts of data mining by law enforcement authorities have been confirmed by Germany’s highest court, which ruled that the Palantir-enabled practices by two German states are unconstitutional.  Regardless, the draft bill seeks to introduce similar powers across the country.  

Police Access to More User Data 

The government wants to exploit an already-controversial provision of the recently adopted Digital Services Act (DSA). The law, which regulates online platforms in the European Union, has been criticized for requiring providers to proactively share user data with law enforcement authorities in potential cases of violent crime. Due to its unclear definition, the provision risks undermining the freedom of expression online as providers might be pressured to share rather more than less data to avoid DSA fines.

Frustrated by the low volume of cases forwarded by providers, the German government now suggests expanding the DSA to include specific criminal offences for which companies must share user data. While it is unrealistic to update European regulations as complex as the DSA so shortly after its adoption, this proposal shows that protecting fundamental rights online is not a priority for this government. 

Next Steps

Meanwhile, thousands have protested the security package in Berlin. Moreover, experts at the parliament’s hearing and German civil society groups are sending a clear signal: the government’s plans undermine fundamental rights, violate European law, and walk back the coalition parties’ own promises. EFF stands with the opponents of these proposals. We must defend fundamental rights more decidedly than ever.