This is the fourth instalment in a four-part blog series documenting EFF's work in Europe. You can read additional posts here: 

• Saving the Internet in Europe: How EFF Works in Europe
• Saving the Internet in Europe: Defending Free Expression
• Saving the Internet in Europe: Defending Privacy and Fighting Surveillance

EFF’s mission is to ensure that technology supports freedom, justice, and innovation for all people of the world. While our work has taken us to far corners of the globe, in recent years we have worked to expand our efforts in Europe, building up a policy team with key expertise in the region, and bringing our experience in advocacy and technology to the European fight for digital rights.   

In this blog post series, we will introduce you to the various players involved in that fight, share how we work in Europe, and discuss how what happens in Europe can affect digital rights across the globe.  

EFF’s Approach to Competition  

Market concentration and monopoly power among internet companies and internet access impacts many of EFF’s issues, particularly innovation, consumer privacy, net neutrality, and platform censorship. And we have said it many times: Antitrust law and rules on market fairness are powerful tools with the potential to either cement the hold of established giants over a market even more or to challenge incumbents and spur innovation and choice that benefit users. Antitrust enforcement must hit monopolists where it hurts: ensuring that anti-competitive behaviors like abuse of dominance by multi-billion-dollar tech giants come at a price high enough to force real change.  

The EU has recently shown that it is serious about cracking down on Big Tech companies with its full arsenal of antitrust rules. For example, in a high-stakes appeal in 2022, EU judges hit Google with a record fine of more than €4.13 billion for abusing its dominant position by locking Android users into its search engine (now pending before the Court of Justice). 

We believe that with the right dials and knobs, clever competition rules can complement antitrust enforcement and ensure that firms that grow top heavy and sluggish are displaced by nimbler new competitors. Good competition rules should enable better alternatives that protect users’ privacy and enhance users’ technological self-determination. In the EU, this requires not only proper enforcement of existing rules but also new regulation that tackles gatekeeper’s dominance before harm is done. 

The Digital Markets Act  

The DMA will probably turn out to be one of the most impactful pieces of EU tech legislation in history. It’s complex but the overall approach is to place new requirements and restrictions on online “gatekeepers”: the largest tech platforms, which control access to digital markets for other businesses. These requirements are designed to break down the barriers businesses face in competing with the tech giants. 

Let’s break down some of the DMA’s rules. If enforced robustly, the DMA will make it easier for users to switch services, install third party apps and app stores and have more power over default settings on their mobile computing devices. Users will no longer be steered into sticking with the defaults embedded in their devices and can choose, for example, their own default browser on Apple’s iOS. The DMA also tackles data collection practices: gatekeepers can no longer cross-combine user data or sign them into new services without their explicit consent and must provide them with a specific choice. A “pay or consent” advertising model as proposed by Meta will probably not cut it.  

There are also new data access and sharing requirements that could benefit users, such as the right of end users to request effective portability of data and get access to effective tools to this end. One section of the DMA even requires gatekeepers to make their person-to-person messaging systems (like WhatsApp) interoperable with competitors’ systems on request—making it a globally unique ex ante obligation in competition regulation. At EFF, we believe that interoperable platforms can be a driver for technological self-determination and a more open internet. But even though data portability and interoperability are anti-monopoly medicine, they come with challenges: Ported data can contain sensitive information about you and interoperability poses difficult questions about security and governance, especially when it’s mandated for encrypted messaging services. Ideally, the DMA should be implemented to offer better protections for users’ privacy and security, new features, new ways of communication and better terms of service.  

There are many more do's and don'ts in the new fairness rulebook of the EU, such as the prohibition of platforms to favour their own products and services over those of rivals in ranking, crawling and indexing (ensuring users a real choice!), along with many other measures. All these and other requirements are to create more fairness and contestability in digital markets—a laudable objective.  If done right, the DMA presents an option for a real change for technology users—and a real threat to current abusive or unfair industry practices by Big Tech. But if implemented poorly, it could create more legal uncertainty, restrict free expression, or even legitimize the status quo. It is now up to the European Commission to bring the DMA’s promises to life. 

Public Interest 

As the EU’s 2024–2029 mandate is now in full swing, it will be important to not lose sight of the big picture. Fairness rules can only be truly fair if they follow a public-interest approach by empowering users, business, and society more broadly and make it easier for users to control the technology they rely on. And we cannot stop here: the EU must strive to foster a public interest internet and support open-source and decentralized alternatives. Competition and innovation are interconnected forces and the recent rise of the Fediverse makes this clear. Platforms like Mastodon and Bluesky thrive by filling gaps (and addressing frustrations) left by corporate giants, offering users more control over their experience and ultimately strengthening the resilience of the open internet. The EU should generally support user-controlled alternatives to Big Tech and use smart legislation to foster interoperability for services like social networks. In an ideal world, users are no longer locked into dominant platforms and the ad-tech industry—responsible for pervasive surveillance and other harms—is brought under control. 

What we don’t want is a European Union that conflates fairness with protectionist industrial policies or reacts to geopolitical tensions with measures that could backfire on digital openness and fair markets. The enforcement of the DMA and new EU competition and digital rights policies must remain focused on prioritizing user rights and ensuring compliance from Big Tech—not tolerating malicious (non)compliance tactics—and upholding the rule of law rather than politicized interventions. The EU should avoid policies that could lead to a fragmented internet and must remain committed to net neutrality. It should also not hesitate to counter the concentration of power in the emerging AI stack market, where control over infrastructure and technology is increasingly in the hands of a few dominant players. 

EFF will be watching. And we will continue to fight to save the internet in Europe, ensuring that fairness in digital markets remains rooted in choice, competition, and the right to innovate. 

EFF was delighted to once again attend RightsCon—this year hosted in Taipei, Taiwan between 24-27 February. As with previous years, RightsCon provided an invaluable opportunity for human rights experts, technologists, activists, and government representatives to discuss pressing human rights challenges and their potential solutions. 

For some attending from EFF, this was the first RightsCon. For others, their 10th or 11th. But for all, one message was spoken loud and clear: the need to collectivize digital rights in the face of growing authoritarian governments and leaders occupying positions of power around the globe, as well as Big Tech’s creation and provision of consumer technologies for use in rights-abusing ways. 

EFF hosted a multitude of sessions, and appeared on many more panels—from a global perspective on platform accountability frameworks, to the perverse gears supporting transnational repression, and exploring tech tools for queer liberation online. Here we share some of our highlights.

Major Concerns Around Funding Cuts to Civil Society 

Two major shifts affecting the digital rights space underlined the renewed need for solidarity and collective responses. First, the Trump administration’s summary (and largely illegal) funding cuts for the global digital rights movement from USAID, the State Department, the National Endowment for Democracy and other programs, are impacting many digital rights organizations across the globe and deeply harming the field. By some estimates, U.S. government cuts, along with major changes in the Netherlands and elsewhere, will result in a 30% reduction in the size of the global digital rights community, especially in global majority countries. 

Second, the Trump administration’s announcement to respond to the regulation of U.S. tech companies with tariffs has thrown another wrench into the work of many of us working towards improved tech accountability. 

We know that attacks on civil society, especially on funding, are a go-to strategy for authoritarian rulers, so this is deeply troubling. Even in more democratic settings, this reinforces the shrinking of civic space hindering our collective ability to organize and fight for better futures. Given the size of the cuts, it’s clear that other funders will struggle to counterbalance the dwindling U.S. public funding, but they must try. We urge other countries and regions, as well as individuals and a broader range of philanthropy, to step up to ensure that the crucial work defending human rights online will be able to continue. 

Community Solidarity with Alaa Abd El-Fattah and Laila Soueif

The call to free Alaa Abd El-Fattah from illegal detention in Egypt was a prominent message heard throughout RightsCon. During the opening ceremony, Access Now’s new Executive Director, Alejandro Mayoral, talked about Alaa’s keynote speech at the very first RightsCon and stated: “We stand in solidarity with him and all civil society actors, activists, and journalists whose governments are silencing them.” The opening ceremony also included a video address from Alaa’s mother, Laila Soueif, in which she urged viewers to “not let our defeat be permanent.” Sadly, immediately after that address Ms. Soueif was admitted to the hospital as a result of her longstanding hunger strike in support of her son. 

The calls to #FreeAlaa and save Laila were again reaffirmed during the closing ceremony in a keynote by Sara Alsherif, Migrant Digital Justice Programme Manager at UK-based digital rights group Open Rights Group and close friend of Alaa. Referencing Alaa’s early work as a digital activist, Alsherif said: “He understood that the fight for digital rights is at the core of the struggle for human rights and democracy.” She closed by reminding the hundreds-strong audience that “Alaa could be any one of us … Please do for him what you would want us to do for you if you were in his position.”

EFF and Open Rights Group also hosted a session talking about Alaa, his work as a blogger, coder, and activist for more than two decades. The session included a reading from Alaa’s book and a discussion with participants on strategies.

Platform Accountability in Crisis

Online platforms like Facebook and services like Google are crucial spaces for civic discourse and access to information. Many sessions at RightsCon were dedicated to the growing concern that these platforms have also become powerful tools for political manipulation, censorship, and control. With the return of the Trump administration, Facebook’s shift in hate speech policies, and the growing geo-politicization of digital governance, many now consider platform accountability being in crisis. 

A dedicated “Day 0” event, co-organized by Access Now and EFF, set the stage of these discussions with a high-level panel reflecting on alarming developments in platform content policies and enforcement. Reflecting on Access Now’s “rule of law checklist,” speakers stressed how a small group of powerful individuals increasingly dictate how platforms operate, raising concerns about democratic resilience and accountability. They also highlighted the need for deeper collaboration with global majority countries on digital governance, taking into account diverse regional challenges. Beyond regulation, the conversation discussed the potential of user-empowered alternatives, such as decentralized services, to counter platform dominance and offer more sustainable governance models.

A key point of attention was the EU’s Digital Services Act (DSA), a rulebook with the potential to shape global responses to platform accountability but one that also leaves many crucial questions open. The conversation naturally transitioned to the workshop organized by the DSA Human Rights Alliance, which focused more specifically on the global implications of DSA enforcement and how principles for a “Human Rights-Centered Application of the DSA” could foster public interest and collaboration.

Fighting Internet Shutdowns and Anti-Censorship Tools

Many sessions discussed internet shutdowns and other forms of internet blocking impacted the daily lives of people under extremely oppressive regimes. The overwhelming conclusion was that we need encryption to remain strong in countries with better conditions of democracy in order to continue to bridge access to services in places where democracy is weak. Breaking encryption or blocking important tools for “national security,” elections, exams, protests, or for law enforcement only endangers freedom of information for those with less political power. In turn, these actions empower governments to take possibly inhumane actions while the “lights are out” and people can’t tell the rest of the world what is happening to them.

Another pertinent point coming out of RightsCon was that anti-censorship tools work best when everyone is using them. Diversity of users not only helps to create bridges for others who can’t access the internet through normal means, but it also helps to create traffic that looks innocuous enough to bypass censorship blockers. Discussions highlighted how the more tools we have to connect people without unique traffic, the less chances there are for government censorship technology to keep their traffic from going through. We know some governments are not above completely shutting down internet access. But in cases where they still allow the internet, user diversity is key. It also helps to move away from narratives that imply “only criminals” use encryption. Encryption is for everyone, and everyone should use it. Because tomorrow’s internet could be tested by future threats.

Palestine: Human Rights in Times of Conflict

At this years RightsCon, Palestinian non-profit organization 7amleh, in collaboration with the Palestinian Digital Rights Coalition and supported by dozens of international organizations including EFF, launched #ReconnectGaza, a global campaign to rebuild Gaza’s telecommunications network and safeguard the right to communication as a fundamental human right. The campaign comes on the back of more than 17 months of internet blackouts and destruction to Gaza’s telecommunications infrastructure by the Israeli authorities. Estimates indicate that 75% of Gaza’s telecommunications infrastructure has been damaged, with 50% completely destroyed. This loss of connectivity has crippled essential services—preventing healthcare coordination, disrupting education, and isolating Palestinians from the digital economy. 

On another panel, EFF raised concerns to Microsoft representatives about an AP report that emerged just prior to Rightscon about the company providing services to the Israeli Defense Forces that are being used as part of the repression of Palestinians in Gaza as well as in the bombings in Lebanon. We noted that Microsoft’s pledges to support human rights seemed to be in conflict with this, something EFF has already raised about Google and Amazon and their work on Project Nimbus.  Microsoft promised to look into that allegation, as well as one about its provision of services to Saudi Arabia. 

In the RightsCon opening ceremony, Alejandro Mayoral noted that: “Today, the world’s eyes are on Gaza, where genocide has taken place, AI is being weaponized, and people’s voices are silenced as the first phase of the fragile Palestinian-Israeli ceasefire is realized.” He followed up by saying, “We are surrounded by conflict. Palestine, Sudan, Myanmar, Ukraine, and beyond…where the internet and technology are being used and abused at the cost of human lives.” Following this keynote, Access Now’s MENA Policy and Advocacy Director, Marwa Fatafta, hosted a roundtable to discuss technology in times of conflict, where takeaways included the reminder that “there is no greater microcosm of the world’s digital rights violations happening in our world today than in Gaza. It’s a laboratory where the most invasive and deadly technologies are being tested and deployed on a besieged population.”

Countering Cross-Border Arbitrary Surveillance and Transnational Repression

Concerns about ongoing legal instruments that can be misused to expand transnational repression were also front-and-center at RightsCon. During a Citizen Lab-hosted session we participated in, participants examined how cross-border policing can become a tool to criminalize marginalized groups, the economic incentives driving these criminalization trends, and the urgent need for robust, concrete, and enforceable international human rights safeguards. They also noted that the newly approved UN Cybercrime Convention, with only minimal protections, adds yet another mechanism for broadening cross-border surveillance powers, thereby compounding the proliferation of legal frameworks that lack adequate guardrails against misuse.

Age-Gating the Internet

EFF co-hosted a roundtable session to workshop a human rights statement addressing government mandates to restrict young people’s access to online services and specific legal online speech. Participants in the roundtable represented five continents and included representatives from civil society and academia, some of whom focused on digital rights and some on childrens’ rights. Many of the participants will continue to refine the statement in the coming months.

Hard Conversations

EFF participated in a cybersecurity conversation with representatives of the UK government, where we raised serious concerns about the government’s hostility to strong encryption, and the resulting insecurity they had created for both UK citizens and the people who communicate with them by pressuring Apple to ensure UK law enforcement access to all communications. 

Equity and Inclusion in Platform Discussions, Policies, and Trust & Safety

The platform economy is an evergreen RightsCon topic, and this year was no different, with conversations ranging from the impact of content moderation on free expression to transparency in monetization policies, and much in between. Given the recent developments at Meta, X, and elsewhere, many participants were rightfully eager to engage.

EFF co-organized an informal meetup of global content moderation experts with whom we regularly convene, and participated in a number of sessions, such as on the decline of user agency on platforms in the face of growing centralized services, as well as ways to expand choice through decentralized services and platforms. One notable session on this topic was hosted by the Center for Democracy and Technology on addressing global inequities in content moderation, in which speakers presented findings from their research on the moderation by various platforms of content in Maghrebi Arabic and Kiswahili, as well as a forthcoming paper on Quechua.

Reflections and Next Steps

RightsCon is a conference that reminds us of the size and scope of the digital rights movement around the world. Holding it in Taiwan and in the wake of the huge cuts to funding for so many created an urgency that was palpable across the spectrum of sessions and events. We know that we’ve built a robust community and that can weather the storms, and in the face of overwhelming pressure from government and corporate actors, it's essential that we resist the temptation to isolate in the face of threats and challenges but instead continue to push forward with collectivisation and collaboration to continue speaking truth to power, from the U.S. to Germany, and across the globe.

For a decade, the EU has served as the regulatory frontrunner for online services and new technology. Over the past two EU mandates (terms), the EU Commission brought down many regulations covering all sectors, but Big Tech has been the center of their focus. As the EU seeks to regulate the world’s largest tech companies, the world is taking notice, and debates about the landmark Digital Markets Act (DMA) and Digital Services Act (DSA) have spread far beyond Europe. 

The DSA’s focus is the governance of online content. It requires increased transparency in content moderation while holding platforms accountable for their role in disseminating illegal content. 

For “very large online platforms” (VLOPs), the DSA imposes a complex challenge: addressing “systemic risks” – those arising from their platforms’ underlying design and rules - as well as from how these services are used by the public. Measures to address these risks often pull in opposite directions. VLOPs must tackle illegal content and address public security concerns; while simultaneously upholding fundamental rights, such as freedom of expression; while also considering impacts on electoral processes and more nebulous issues like “civic discourse.” Striking this balance is no mean feat, and the role of regulators and civil society in guiding and monitoring this process remains unclear.  

As you can see, the DSA is trying to walk a fine line: addressing safety concerns and the priorities of the market. The DSA imposes uniform rules on platforms that are meant to ensure fairness for individual users, but without so proscribing the platforms’ operations that they can’t innovate and thrive.  

The DMA, on the other hand, concerns itself entirely with the macro level – not on the rights of users, but on the obligations of, and restrictions on, the largest, most dominant platforms.  

The DMA concerns itself with a group of “gatekeeper” platforms that control other businesses’ access to digital markets. For these gatekeepers, the DMA imposes a set of rules that are supposed to ensure “contestability” (that is, making sure that upstarts can contest gatekeepers’ control and maybe overthrow their power) and “fairness” for digital businesses.  

Together, the DSA and DMA promise a safer, fairer, and more open digital ecosystem. 

As 2024 comes to a close, important questions remain: How effectively have these laws been enforced? Have they delivered actual benefits to users?

Fairness Regulation: Ambition and High-Stakes Clashes 

There’s a lot to like in the DMA’s rules on fairness, privacy and choice...if you’re a technology user. If you’re a tech monopolist, those rules are a nightmare come true. 

Predictably, the DMA was inaugurated with a no-holds-barred dirty fight between the biggest US tech giants and European enforcers.  

Take commercial surveillance giant Meta: the company’s mission is to relentlessly gather, analyze and abuse your personal information, without your consent or even your knowledge. In 2016, the EU passed its landmark privacy law, called the General Data Protection Regulation. The GDPR was clearly intended to halt Facebook’s romp through the most sensitive personal information of every European. 

In response, Facebook simply pretended the GDPR didn’t say what it clearly said, and went on merrily collecting Europeans’ information without their consent. Facebook’s defense for this is that they were contractually obliged to collect this information, because their terms and conditions represented a promise to users to show them surveillance ads, and if they didn’t gather all that information, they’d be breaking that promise. 

The DMA strengthens the GDPR by clarifying the blindingly obvious point that a privacy law exists to protect your privacy. That means that Meta’s services – Facebook, Instagram, Threads, and its “metaverse” (snicker) - are no longer allowed to plunder your private information. They must get your consent. 

In response, Meta announced that it would create a new paid tier for people who don’t want to be spied on, and thus anyone who continues to use the service without paying for it is “consenting” to be spied on. The DMA explicitly bans these “Pay or OK” arrangements, but then, the GDPR banned Meta’s spying, too. Zuckerberg and his executives are clearly expecting that they can run the same playbook again. 

Apple, too, is daring the EU to make good on its threats. Ordered to open up its iOS devices (iPhones, iPads and other mobile devices) to third-party app stores, the company cooked up a Kafkaesque maze of junk fees, punitive contractual clauses, and unworkable conditions and declared itself to be in compliance with the DMA.  

For all its intransigence, Apple is getting off extremely light. In an absurd turn of events, Apple’s iMessage system was exempted from the DMA’s interoperability requirements (which would have forced Apple to allow other messaging systems to connect to iMessage and vice-versa). The EU Commission decided that Apple’s iMessage – a dominant platform that the company CEO openly boasts about as a source of lock-in – was not a “gatekeeper platform.”

Platform regulation: A delicate balance 

For regulators and the public the growing power of online platforms has sparked concerns: how can we address harmful content, while also protecting platforms from being pushed to over-censor, so that freedom of expression isn’t on the firing line?  

EFF has advocated for fundamental principles like “transparency,” “openness,” and “technological self-determination.” In our European work, we always emphasize that new legislation should preserve, not undermine, the protections that have served the internet well. Keep what works, fix what is broken.  

In the DSA, the EU got it right, with a focus on platforms’ processes rather than on speech control. The DSA has rules for reporting problematic content, structuring terms of use, and responding to erroneous content removals. That’s the right way to do platform governance! 

But that doesn’t mean we’re not worried about the DSA’s new obligations for tackling illegal content and systemic risks, broad goals that could easily lead to enforcement overreach and censorship. 

In 2024, our fears were realized, when the DSA’s ambiguity as to how systemic risks should be mitigated created a new, politicized enforcement problem. Then-Commissioner Theirry Breton sent a letter to Twitter, saying that under the DSA, the platform had an obligation to remove content related to far-right xenophobic riots in the UK, and about an upcoming meeting between Donald Trump and Elon Musk. This letter sparked widespread concern that the DSA was a tool to allow bureaucrats to decide which political speech could and could not take place online. Breton’s letter sidestepped key safeguards in the DSA: the Commissioner ignored the question of “systemic risks” and instead focused on individual pieces of content, and then blurred the DSA’s critical line between "illegal” and “harmful”; Breton’s letter also ignored the territorial limits of the DSA, demanding content takedowns that reached outside the EU. 

Make no mistake: online election disinformation and misinformation can have serious real-world consequences, both in the U.S. and globally. This is why EFF supported the EU Commission’s initiative to gather input on measures platforms should take to mitigate risks linked to disinformation and electoral processes. Together with ARTICLE 19, we submitted comments to the EU Commission on future guidelines for platforms. In our response, we recommend that the guidelines prioritize best practices, instead of policing speech. Additionally, we recommended that DSA risk assessment and mitigation compliance evaluations prioritize ensuring respect for fundamental rights.  

The typical way many platforms address organized or harmful disinformation is by removing content that violates community guidelines, a measure trusted by millions of EU users. But contrary to concerns raised by EFF and other civil society groups, a new law in the EU, the EU Media Freedom Act, enforces a 24-hour content moderation exemption for media, effectively making platforms host content by force. While EFF successfully pushed for crucial changes and stronger protections, we remain concerned about the real-world challenges of enforcement.  

This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2024.

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.

EFF, Access Now, and Article 19 have written to EU Commissioner for Internal Market Thierry Breton calling on him to clarify his understanding of “systemic risks” under the Digital Services Act, and to set a high standard for the protection of fundamental rights, including freedom of expression and of information. The letter was in response to Breton’s own letter addressed to X, in which he urged the platform to take action to ensure compliance with the DSA in the context of far-right riots in the UK as well as the conversation between US presidential candidate Donald Trump and X CEO Elon Musk, which was scheduled to be, and was in fact, live-streamed hours after his letter was posted on X. 

Clarification is necessary because Breton’s letter otherwise reads as a serious overreach of EU authority, and transforms the systemic risks-based approach into a generalized tool for censoring disfavored speech around the world. By specifically referencing the streaming event between Trump and Musk on X, Breton’s letter undermines one of the core principles of the DSA: to ensure fundamental rights protections, including freedom of expression and of information, a principle noted in Breton’s letter itself.

The DSA Must Not Become A Tool For Global Censorship

The letter plays into some of the worst fears of critics of the DSA that it would be used by EU regulators as a global censorship tool rather than addressing societal risks in the EU. 

The DSA requires very large online platforms (VLOPs) to assess the systemic risks that stem from “the functioning and use made of their services in the [European] Union.” VLOPs are then also required to adopt “reasonable, proportionate and effective mitigation measures,”“tailored to the systemic risks identified.” The emphasis on systemic risks was intended, at least in part, to alleviate concerns that the DSA would be used to address individual incidents of dissemination of legal, but concerning, online speech. It was one of the limitations that civil society groups concerned with preserving a free and open internet worked hard to incorporate. 

Breton’s letter troublingly states that he is currently monitoring “debates and interviews in the context of elections” for the “potential risks” they may pose in the EU. But such debates and interviews with electoral candidates, including the Trump-Musk interview, are clearly matters of public concern—the types of publication that are deserving of the highest levels of protection under the law. Even if one has concerns about a specific event, dissemination of information that is highly newsworthy, timely, and relevant to public discourse is not in itself a systemic risk.

People seeking information online about elections have a protected right to view it, even through VLOPs. The dissemination of this content should not be within the EU’s enforcement focus under the threat of non-compliance procedures, and risks associated with such events should be analyzed with care. Yet Breton’s letter asserts that such publications are actually under EU scrutiny. And it is entirely unclear what proactive measures a VLOP should take to address a future speech event without resorting to general monitoring and disproportionate content restrictions. 

Moreover, Breton’s letter fails to distinguish between “illegal” and “harmful content” and implies that the Commission favors content-specific restrictions of lawful speech. The European Commission has itself recognized that “harmful content should not be treated in the same way as illegal content.” Breton’s tweet that accompanies his letter refers to the “risk of amplification of potentially harmful content.” His letter seems to use the terms interchangeably. Importantly, this is not just a matter of differences in the legal protections for speech between the EU, the UK, the US, and other legal systems. The distinction, and the protection for legal but harmful speech, is a well-established global freedom of expression principle. 

Lastly, we are concerned that the Commission is reaching beyond its geographic mandate.  It is not clear how such events that occur outside the EU are linked to risks and societal harm to people who live and reside within the EU, as well as the expectation of the EU Commission about what actions VLOPs must take to address these risks. The letter itself admits that the assessment is still in process, and the harm merely a possibility. EFF and partners within the DSA Human Rights Alliance have advocated for a long time that there is a great need to follow a human rights-centered enforcement of the DSA that also considers the global effects of the DSA. It is time for the Commission to prioritize their enforcement actions accordingly. 

Read the full letter here.

Global Elections and Platform Responsibility

This year is a major one for elections around the world, with pivotal races in the U.S., the UK, the European Union, Russia, and India, to name just a few. Social media platforms play a crucial role in democratic engagement by enabling users to participate in public discourse and by providing access to information, especially as public figures increasingly engage with voters directly. Unfortunately elections also attract a sometimes dangerous amount of disinformation, filling users' news feed with ads touting conspiracy theories about candidates, false news stories about stolen elections, and so on.

Online election disinformation and misinformation can have real world consequences in the U.S. and all over the world. The EU Commission and other regulators are therefore formulating measures platforms could take to address disinformation related to elections. 

Given their dominance over the online information space, providers of Very Large Online Platforms (VLOPs), as sites with over 45 million users in the EU are called, have unique power to influence outcomes.  Platforms are driven by economic incentives that may not align with democratic values, and that disconnect  may be embedded in the design of their systems. For example, features like engagement-driven recommender systems may prioritize and amplify disinformation, divisive content, and incitement to violence. That effect, combined with a significant lack of transparency and targeting techniques, can too easily undermine free, fair, and well-informed electoral processes.

Digital Services Act and EU Commission Guidelines

The EU Digital Services Act (DSA) contains a set of sweeping regulations about online-content governance and responsibility for digital services that make X, Facebook, and other platforms subject in many ways to the European Commission and national authorities. It focuses on content moderation processes on platforms, limits targeted ads, and enhances transparency for users. However, the DSA also grants considerable power to authorities to flag content and investigate anonymous users - powers that they may be tempted to mis-use with elections looming. The DSA also obliges VLOPs to assess and mitigate systemic risks, but it is unclear what those obligations mean in practice. Much will depend on how social media platforms interpret their obligations under the DSA, and how European Union authorities enforce the regulation.

We therefore support the initiative by the EU Commission to gather views about what measures the Commission should call on platforms to take to mitigate specific risks linked to disinformation and electoral processes.

Together with ARTICLE 19, we have submitted comments to the EU Commission on future guidelines for platforms. In our response, we recommend that the guidelines prioritize best practices, instead of policing speech. Furthermore, DSA risk assessment and mitigation compliance evaluations should focus primarily on ensuring respect for fundamental rights. 

We further argue against using watermarking of AI content to curb disinformation, and caution against the draft guidelines’ broadly phrased recommendation that platforms should exchange information with national authorities. Any such exchanges should take care to respect human rights, beginning with a transparent process.  We also recommend that the guidelines pay particular attention to attacks against minority groups or online harassment and abuse of female candidates, lest such attacks further silence those parts of the population who are already often denied a voice.

EFF and ARTICLE 19 Submission: https://www.eff.org/document/joint-submission-euelections

In a milestone judgment—Podchasov v. Russia—the European Court of Human Rights (ECtHR) has ruled that weakening of encryption can lead to general and indiscriminate surveillance of the communications of all users and violates the human right to privacy.  

In 2017, the landscape of digital communication in Russia faced a pivotal moment when the government required Telegram Messenger LLP and other “internet communication” providers to store all communication data—and content—for specified durations. These providers were also required to supply law enforcement authorities with users’ data, the content of their communications, as well as any information necessary to decrypt user messages. The FSB (the Russian Federal Security Service) subsequently ordered Telegram to assist in decrypting the communications of specific users suspected of engaging in terrorism-related activities.

Telegram opposed this order on the grounds that it would create a backdoor that would undermine encryption for all of its users. As a result, Russian courts fined Telegram and ordered the blocking of its app within the country. The controversy extended beyond Telegram, drawing in numerous users who contested the disclosure orders in Russian courts. A Russian citizen, Mr Podchasov, escalated the issue to the European Court of Human Rights (ECtHR), arguing that forced decryption of user communication would infringe on the right to private life under Article 8 of the European Convention of Human Rights (ECHR), which reads as follows:  

Everyone has the right to respect for his private and family life, his home and his correspondence (Article 8 ECHR, right to respect for private and family life, home and correspondence) 

EFF has always stood against government intrusion into the private lives of users and advocated for strong privacy guarantees, including the right to confidential communication. Encryption not only safeguards users’ privacy but also protects their right to freedom of expression protected under international human rights law. 

In a great victory for privacy advocates, the ECtHR agreed. The Court found that the requirement of continuous, blanket storage of private user data interferes with the right to privacy under the Convention, emphasizing that the possibility for national authorities to access these data is a crucial factor for determining a human rights violation [at 53]. The Court identified the inherent risks of arbitrary government action in secret surveillance in the present case and found again—following its stance in Roman Zakharov v. Russia—that the relevant legislation failed to live up to the quality of law standards and lacked the adequate and effective safeguards against misuse [75].  Turning to a potential justification for such interference, the ECtHR emphasized the need of a careful balancing test that considers the use of modern data storage and processing technologies and weighs the potential benefits against important private-life interests [62-64]. 

In addressing the State mandate for service providers to submit decryption keys to security services, the court's deliberations culminated in the following key findings [76-80]:

1. Encryption being important for protecting the right to private life and other fundamental rights, such as freedom of expression: The ECtHR emphasized the importance of encryption technologies for safeguarding the privacy of online communications. Encryption safeguards and protects the right to private life generally while also supporting the exercise of other fundamental rights, such as freedom of expression.
2. Encryption as a shield against abuses: The Court emphasized the role of encryption to provide a robust defense against unlawful access and generally “appears to help citizens and businesses to defend themselves against abuses of information technologies, such as hacking, identity and personal data theft, fraud and the improper disclosure of confidential information.” The Court held that this must be given due consideration when assessing measures which could weaken encryption.
3. Decryption of communications orders weakens the encryption for all users: The ECtHR established that the need to decrypt Telegram's "secret chats" requires the weakening of encryption for all users. Taking note again of the dangers of restricting encryption described by many experts in the field, the Court held that backdoors could be exploited by criminal networks and would seriously compromise the security of all users’ electronic communications. 
4. Alternatives to decryption: The ECtHR took note of a range of alternative solutions to compelled decryption that would not weaken the protective mechanisms, such as forensics on seized devices and better-resourced policing.  

In light of these findings, the Court held that the mandate to decrypt end-to-end encrypted communications risks weakening the encryption mechanism for all users, which was a disproportionate to the legitimate aims pursued. 

In summary [80], the Court concluded that the retention and unrestricted state access to internet communication data, coupled with decryption requirements, cannot be regarded as necessary in a democratic society, and are thus unlawful. It emphasized that a direct access of authorities to user data on a generalized basis and without sufficient safeguards impairs the very essence of the right to private life under the Convention. The Court also highlighted briefs filed by the European Information Society Institute (EISI) and Privacy International, which provided insight into the workings of end-to-end encryption and explained why mandated backdoors represent an illegal and disproportionate measure. 

Impact of the ECtHR ruling on current policy developments 

The ruling is a landmark judgment, which will likely draw new normative lines about human rights standards for private and confidential communication. We are currently supporting Telegram in its parallel complaint to the ECtHR, contending that blocking its app infringes upon fundamental rights. As part of a collaborative efforts of international human rights and media freedom organisations, we have submitted a third-party intervention to the ECtHR, arguing that blocking an entire app is a serious and disproportionate restriction on freedom of expression. That case is still pending. 

The Podchasov ruling also directly challenges ongoing efforts in Europe to weaken encryption to allow access and scanning of our private messages and pictures.

For example, the controversial UK's Online Safety Act creates the risk that online platforms will use software to search all users’ photos, files, and messages, scanning for illegal content. We recently submitted comments to the relevant UK regulator (Ofcom) to avoid any weakening of encryption when this law becomes operational. 

In the EU, we are concerned about the European Commission’s message-scanning proposal (CSAR) as being a disaster for online privacy. It would allow EU authorities to compel online services to scan users’ private messages and compare users’ photos to against law enforcement databases or use error-prone AI algorithms to detect criminal behavior. Such detection measures will inevitably lead to dangerous and unreliable Client-Side Scanning practices, undermining the essence of end-to-end encryption. As the ECtHR deems general user scanning as disproportionate, specifically criticizing measures that weaken existing privacy standards, forcing platforms like WhatsApp or Signal to weaken security by inserting a vulnerability into all users’ devices to enable message scanning must be considered unlawful. 

The EU regulation proposal is likely to be followed by other proposals to grant law enforcement access to encrypted data and communications. An EU high level expert group on ‘access to data for effective law enforcement’ is expected to make policy recommendations to the next EU Commission in mid-2024. 

We call on lawmakers to take the Court of Human Rights ruling seriously: blanket and indiscriminate scanning of user communication and the general weakening of encryption for users is unacceptable and unlawful. 

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. 

The European Parliament and Member States’ representatives last week negotiated a controversial special status for media outlets that are active on large online platforms. The EU Media Freedom Act (EMFA), though well-intended, has significant flaws. By creating a special class of privileged self-declared media providers whose content cannot be removed from big tech platforms, the law not only changes company policies but risks harming users in the European Union (EU) and beyond. 

Fostering Media Plurality: Good Intentions 

Last year, the EU Commission presented the EMFA as a way to bolster media pluralism in the EU. It promised increased transparency about media ownership and safeguards against government surveillance and the use of spyware against journalists—real dangers that EFF has warned against for years. Some of these aspects are still in flux and remain up for negotiation, but the political agreement on EMFA’s content moderation provisions could erode public trust in media and jeopardize the integrity of information channels. 

Content Hosting by Force: Bad Consequences 

Millions of EU users trust that online platforms will take care of content that violates community standards. But contrary to concerns raised by EFF and other civil society groups, Article 17 of the EMFA enforces a 24-hour content moderation exemption for media, effectively making platforms host content by force.  

This “must carry” rule prevents large online platforms like X or Meta, owner of Facebook, Instagram, and WhatsApp, from removing or flagging media content that breaches community guidelines. If the deal becomes law, it could undermine equality of speech, fuel disinformation, and threaten marginalized groups. It also poses important concerns about government interference in editorial decisions.

Imagine signing up to a social media platform committed to removing hate speech, only to find that EU regulations prevent platforms from taking any action against it. Platforms must instead create a special communication channel to discuss content restrictions with news providers before any action is taken. This approach not only undermines platforms’ autonomy in enforcing their terms of use but also jeopardizes the safety of marginalized groups, who are often targeted by hate speech and propaganda. This policy could also allow orchestrated disinformation to remain online, undermining one of the core goals of EMFA to provide more “reliable sources of information to citizens”.  

Bargaining Hell: Platforms and Media Companies Negotiating Content  

Not all media providers will receive this special status. Media actors must self-declare their status on platforms, and demonstrate adherence to recognized editorial standards or affirm compliance with regulatory requirements. Platforms will need to ensure that most of the reported information is publicly accessible. Also, Article 17 is set to include a provision on AI-generated content, with specifics still under discussion. This new mechanism puts online platforms in a powerful yet precarious position of deciding over the status of a wide range of media actors. 

The approach of the EU Media Freedom Act effectively leads to a perplexing bargaining situation where influential media outlets and platforms negotiate over which content remains visible—Christoph Schmon, EFF International Policy Director

It’s likely that the must carry approach will lead to a perplexing bargaining situation where influential media outlets and platforms negotiate over which content remains visible. There are strong pecuniary interests by media outlets to pursue a fast-track communication channel and make sure that their content is always visible, potentially at the expense of smaller providers.  

Implementation Challenges 

It’s positive that negotiators listened to some of our concerns and added language to safeguard media independence from political parties and governments. However, we remain concerned about the enforcement reality and the potential exploitation of the self-declaration mechanism, which could undermine the equality of free speech and democratic debate. While lawmakers stipulated in Article 17 that the EU Digital Services Act remains intact and that platforms are free to shorten the suspension period in crisis situations, the practical implementation of the EMFA will be a challenge.