The first batch of reports assessing the so called “systemic risks” posed by the largest online platforms are in. These reports are a result of the Digital Services Act (DSA), Europe’s new law regulating platforms like Google, Meta, Amazon or X, and have been eagerly awaited by civil society groups across the globe. In their reports, companies are supposed to assess whether their services contribute to a wide range of barely defined risks. These go beyond the dissemination of illegal content and include vaguely defined categories such as negative effects on the integrity of elections, impediments to the exercise of fundamental rights or undermining of civic discourse. We have previously warned that the subjectivity of these categories invites a politization of the DSA.  

In view of a new DSA investigation into TikTok’s potential role in Romania’s presidential election, we take a look at the reports and the framework that has produced them to understand their value and limitations.  

A Short DSA Explainer  

The DSA covers a lot of different services. It regulates online markets like Amazon or Shein, social networks like Instagram and TikTok, search engines like Google and Bing, and even app stores like those run by Apple and Google. Different obligations apply to different services, depending on their type and size. Generally, the lower the degree of control a service provider has over content shared via its product, the fewer obligations it needs to comply with.   

For example, hosting services like cloud computing must provide points of contact for government authorities and users and basic transparency reporting. Online platforms, meaning any service that makes user generated content available to the public, must meet additional requirements like providing users with detailed information about content moderation decisions and the right to appeal. They must also comply with additional transparency obligations.  

While the DSA is a necessary update to the EU’s liability rules and improved users’ rights, we have plenty of concerns with the route that it takes:  

• We worry about the powers it gives to authorities to request user data and the obligation on providers to proactively share user data with law enforcement.  

• We are also concerned about the ways in which trusted flaggers could lead to the over-removal of speech, and  

• We caution against the misuse of the DSA’s mechanism to deal with emergencies like a pandemic. 

Introducing Systemic Risks 

The most stringent DSA obligations apply to large online platforms and search engines that have more than 45 million users in the EU. The European Commission has so far designated more than 20 services to constitute such “very large online platforms” (VLOPs) or “very large online search engines” (VLOSEs). These companies, which include X, TikTok, Amazon, Google Search, Maps and Play, YouTube and several porn platforms, must proactively assess and mitigate “systemic risks” related to the design, operation and use of their services. The DSA’s non-conclusive list of risks includes four broad categories: 1) the dissemination of illegal content, 2) negative effects on the exercise of fundamental rights, 3) threats to elections, civic discourse and public safety, and 4) negative effects and consequences in relation to gender-based violence, protection of minors and public health, and on a person’s physical and mental wellbeing.  

The DSA does not provide much guidance on how VLOPs and VLOSEs are supposed to analyze whether they contribute to the somewhat arbitrary seeming list of risks mentioned. Nor does the law offer clear definitions of how these risks should be understood, leading to concerns that they could be interpreted widely and lead to the extensive removal of lawful but awful content. There is equally little guidance on risk mitigation as the DSA merely names a few measures that platforms can choose to employ. Some of these recommendations are incredibly broad, such as adapting the design, features or functioning of a service, or “reinforcing internal processes”. Others, like introducing age verification measures, are much more specific but come with a host of issues and can undermine fundamental rights themselves.   

Risk Management Through the Lens of the Romanian Election 

Per the DSA, platforms must annually publish reports detailing how they have analyzed and managed risks. These reports are complemented by separate reports compiled by external auditors, tasked with assessing platforms’ compliance with their obligations to manage risks and other obligations put forward by the DSA.  

To better understand the merits and limitations of these reports, let’s examine the example of the recent Romanian election. In late November 2024, an ultranationalist and pro-Russian candidate, Calin Georgescu, unexpectedly won the first round of Romania’s presidential election. After reports by local civil society groups accusing TikTok of amplifying pro-Georgescu content, and a declassified brief published by Romania’s intelligence services that alleges cyberattacks and influence operations, the Romanian constitutional court annulled the results of the election. Shortly after, the European Commission opened formal proceedings against TikTok for insufficiently managing systemic risks related to the integrity of the Romanian election. Specifically, the Commission’s investigation focuses on “TikTok's recommender systems, notably the risks linked to the coordinated inauthentic manipulation or automated exploitation of the service and TikTok's policies on political advertisements and paid-for political content.” 

TikTok’s own risk assessment report dedicates eight pages to potential negative effects on elections and civic discourse. Curiously, TikTok’s definition of this particular category of risk focuses on the spread of election misinformation but makes no mention of coordinated inauthentic behavior or the manipulation of its recommender systems. This illustrates the wide margin on platforms to define systemic risks and implement their own mitigation strategies. Leaving it up to platforms to define relevant risks not only makes the comparison of approaches taken by different companies impossible, it can also lead to overly broad or narrow approaches—potentially undermining fundamental rights or running counter to the obligation to effectively deal with risks, as in this example. It should also be noted that mis- and disinformation are terms not defined by international human rights law and are therefore not well suited as a robust basis on which freedom of expression may be restricted.  

In its report, TikTok describes the measures taken to mitigate potential risks to elections and civic discourse. This overview broadly describes some election-specific interventions like labels for content that has not been fact checked but might contain misinformation, and describes TikTok’s policies like its ban of political ads, which is notoriously easy to circumvent. It does not entail any indication that the robustness and utility of the measures employed are documented or have been tested, nor any benchmarks of when TikTok considers a risk successfully mitigated. It does not, for example, contain figures on how many pieces of content receive certain labels, and how these influence users’ interactions with the content in question.  

Similarly, the report does not contain any data regarding the efficacy of TikTok’s enforcement of its political ads ban. TikTok’s “methodology” for risk assessments, also included in the report, does not help in answering any of these questions, either. And looking at the report compiled by the external auditor, in this case KPMG, we are once again left disappointed: KPMG concluded that it was impossible to assess TikTok’s systemic risk compliance because of two earlier, pending investigations by the European Commission due to potential non-compliance with the systemic risk mitigation obligations. 

Limitations of the DSA’s Risk Governance Approach 

What then, is the value of the risk and audit reports, published roughly a year after their finalization? The answer may be very little.  

As explained above, companies have a lot of flexibility in how to assess and deal with risks. On the one hand, some degree of flexibility is necessary: every VLOP and VLOSE differs significantly in terms of product logics, policies, user base and design choices. On the other hand, the high degree of flexibility in determining what exactly a systemic risk is can lead to significant inconsistencies and render risk analysis unreliable. It also allows regulators to put forward their own definitions, thereby potentially expanding risk categories as they see fit to deal with emerging or politically salient issues.  

Rather than making sense of diverse and possibly conflicting definitions of risks, companies and regulators should put forward joint benchmarks, and include civil society experts in the process. 

Speaking of benchmarks: There is a critical lack of standardized processes, assessment methodologies and reporting templates. Most assessment reports contain very little information on how the actual assessments are carried out, and the auditors’ reports distinguish themselves through an almost complete lack of insight into the auditing process itself. This information is crucial, but it is near impossible to adequately scrutinize the reports themselves without understanding whether auditors were provided the necessary information, whether they ran into any roadblocks looking at specific issues, and how evidence was produced and documented. And without methodologies that are applicable across the board it will remain very challenging, if not impossible, to compare approaches taken by different companies.  

The TikTok example shows that the risk and audit reports do not contain the “smoking gun” some might have hoped for. Besides the shortcomings explained above, this is due to the inherent limitations of the DSA itself. Although the DSA attempts to take a holistic approach to complex societal risks that cut across different but interconnected challenges, its reporting system is forced to only consider the obligations put forward by the DSA itself. Any legal assessment framework will struggle to capture complex societal challenges like the integrity of elections or public safety. In addition, phenomena as complex as electoral processes and civic discourse are shaped by a range of different legal instruments, including European rules on political ads, data protection, cybersecurity and media pluralism, not to mention countless national laws. Expecting a definitive answer on the potential implications of large online services on complex societal processes from a risk report will therefore always fall short.  

The Way Forward  

The reports do present a slight improvement in terms of companies’ accountability and transparency. Even if the reports may not include the hard evidence of non-compliance some might have expected, they are a starting point to understanding how platforms attempt to grapple with complex issues taking place on their services. As such, they are, at best, the basis for an iterative approach to compliance. But many of the risks described by the DSA as systemic and their relationships with online services are still poorly understood.  

Instead of relying on platforms or regulators to define how risks should be conceptualized and mitigated, a joint approach is needed—one that builds on expertise by civil society, academics and activists, and emphasizes best practices. A collaborative approach would help make sense of these complex challenges and how they can be addressed in ways that strengthen users’ rights and protect fundamental rights.  

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.

This post is part two in a series of posts about EFF’s work in Europe. Read about how and why we work in Europe here. 

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 how what happens in Europe can affect digital rights across the globe. 

EFF’s approach to free speech

The global spread of Internet access and digital services promised a new era of freedom of expression, where everyone could share and access information, speak out and find an audience without relying on gatekeepers and make, tinker with and share creative works.  

Everyone should have the right to express themselves and share ideas freely. Various European countries have experienced totalitarian regimes and extensive censorship in the past century, and as a result, many Europeans still place special emphasis on privacy and freedom of expression. These values are enshrined in the European Convention of Human Rights and the Charter of Fundamental Rights of the European Union – essential legal frameworks for the protection of fundamental rights.  

Today, as so much of our speech is facilitated by online platforms, there is an expectation, that they too respect fundamental rights. Through their terms of services, community guidelines or house rules, platforms get to unilaterally define what speech is permissible on their services. The enforcement of these rules can be arbitrary, untransparent and selective, resulting in the suppression of contentious ideas and minority voices.  

That’s why EFF has been fighting against both government threats to free expression and to hold tech companies accountable for grounding their content moderation practices in robust human rights frameworks. That entails setting out clear rules and standards for internal processes such as notifications and explanations to users when terms of services are enforced or changed. In the European Union, we have worked for decades to ensure that laws governing online platforms respect fundamental rights, advocated against censorship and spoke up on behalf of human rights defenders. 

What’s the Digital Services Act and why do we keep talking about it? 

For the past years, we have been especially busy addressing human rights concerns with the drafting and implementation of the DSA the Digital Services Act (DSA), the new law setting out the rules for online services in the European Union. The DSA covers most online services, ranging from online marketplaces like Amazon, search engines like Google, social networks like Meta and app stores. However, not all of its rules apply to all services – instead, the DSA follows a risk-based approach that puts the most obligations on the largest services that have the highest impact on users. All service providers must ensure that their terms of services respect fundamental rights, that users can get in touch with them easily, and that they report on their content moderation activities. Additional rules apply to online platforms: they must give users detailed information about content moderation decisions and the right to appeal and additional transparency obligations. They also have to provide some basic transparency into the functioning of their recommender systems and are not allowed to target underage users with personalized ads. The most stringent obligations apply to the largest online platforms and search engines, which have more than 45 million users in the EU. These companies, which include X, TikTok, Amazon, Google Search and Play, YouTube, and several porn platforms, must proactively assess and mitigate systemic risks related to the design, functioning and use of their service their services. These include risks to the exercise of fundamental rights, elections, public safety, civic discourse, the protection of minors and public health. This novel approach might have merit but is also cause for concern: Systemic risks are barely defined and could lead to restrictions of lawful speech, and measures to address these risks, for example age verification, have negative consequences themselves, like undermining users’ privacy and access to information.  

The DSA is an important piece of legislation to advance users’ rights and hold companies accountable, but it also comes with significant risks. We are concerned about the DSA’s requirement that service providers proactively share user data with law enforcement authorities and the powers it gives government agencies to request such data. We caution against the misuse of the DSA’s emergency mechanism and the expansion of the DSA’s systemic risks governance approach as a catch-all tool to crack down on undesired but lawful speech. Similarly, the appointment of trusted flaggers could lead to pressure on platforms to over remove content, especially as the DSA does not limit government authorities from becoming trusted flaggers.  

EFF has been advocating for lawmakers to take a measured approach that doesn’t undermine the freedom of expression. Even though we have been successful in avoiding some of the most harmful ideas, concerns remain, especially with regards to the politicization of the enforcement of the DSA and potential over-enforcement. That’s why we will keep a close eye on the enforcement of the DSA, ready to use all means at our disposal to push back against over-enforcement and to defend user rights.  

European laws often implicate users globally. To give non-European users a voice in Brussels, we have been facilitating the DSA Human Rights Alliance. The DSA HR Alliance is formed around the conviction that the DSA must adopt a human rights-based approach to platform governance and consider its global impact. We will continue building on and expanding the Alliance to ensure that the enforcement of the DSA doesn’t lead to unintended negative consequences and respects users’ rights everywhere in the world.

The UK’s Platform Regulation Legislation 

In parallel to the Digital Services Act, the UK has passed its own platform regulation, the Online Safety Act (OSA). Seeking to make the UK “the safest place in the world to be online,” the OSA will lead to a more censored, locked-down internet for British users. The Act empowers the UK government to undermine not just the privacy and security of UK residents, but internet users worldwide. 

Online platforms will be expected to remove content that the UK government views as inappropriate for children. If they don’t, they’ll face heavy penalties. The problem is, in the UK as in the U.S. and elsewhere, people disagree sharply about what type of content is harmful for kids. Putting that decision in the hands of government regulators will lead to politicized censorship decisions.  

The OSA will also lead to harmful age-verification systems. You shouldn’t have to show your ID to get online. Age-gating systems meant to keep out kids invariably lead to adults losing their rights to private speech, and anonymous speech, which is sometimes necessary.  

As Ofcom is starting to release their regulations and guidelines, we’re watching how the regulator plans to avoid these human rights pitfalls, and will continue any fighting insufficient efforts to protect speech and privacy online.  

Media freedom and plurality for everyone 

Another issue that we have been championing is media freedom. Similar to the DSA, the EU recently overhauled its rules for media services: the European Media Freedom Act (EMFA). In this context, we pushed back against rules that would have forced online platforms like YouTube, X, or Instagram to carry any content by media outlets. Intended to bolster media pluralism, making platforms host content by force has severe consequences: Millions of EU users can no longer trust that online platforms will address content violating community standards. Besides, there is no easy way to differentiate between legitimate media providers, and such that are known for spreading disinformation, such as government-affiliated Russia sites active in the EU. Taking away platforms' possibility to restrict or remove such content could undermine rather than foster public discourse.  

The final version of EMFA introduced a number of important safeguards but is still a bad deal for users: We will closely follow its implementation to ensure that the new rules actually foster media freedom and plurality, inspire trust in the media and limit the use of spyware against journalists.  

Exposing censorship and defending those who defend us 

Covering regulation is just a small part of what we do. Over the past years, we have again and again revealed how companies’ broad-stroked content moderation practices censor users in the name of fighting terrorism, and restrict the voices of LGBTQ folks, sex workers, and underrepresented groups.  

Going into 2025, we will continue to shed light on these restrictions of speech and will pay particular attention to the censorship of Palestinian voices, which has been rampant. We will continue collaborating with our allies in the Digital Intimacy Coalition to share how restrictive speech policies often disproportionally affect sex workers. We will also continue to closely analyze the impact of the increasing and changing use of artificial intelligence in content moderation.  

Finally, a crucial part of our work in Europe has been speaking out for those who cannot: human rights defenders facing imprisonment and censorship.  

Much work remains to be done. We have put forward comprehensive policy recommendations to European lawmakers and we will continue fighting for an internet where everyone can make their voice heard. In the next posts in this series, you will learn more about how we work in Europe to ensure that digital markets are fair, offer users choice and respect fundamental rights. 

This post is part one in a series of posts about EFF’s work in Europe.

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 how what happens in Europe can affect digital rights across the globe.

Why EFF Works in Europe

European lawmakers have been highly active in proposing laws to regulate online services and emerging technologies. And these laws have the potential to impact the whole world. As such, we have long recognized the importance of engaging with organizations and lawmakers across Europe. In 2007, EFF became a member of the European Digital Rights Initiative (EDRi), a collective of NGOs, experts, advocates and academics that have for two decades worked to advance digital rights throughout Europe. From the early days of the movement, we fought back against legislation threatening user privacy in Germany, free expression in the UK, and the right to innovation across the continent.

Over the years, we have continued collaborations with EDRi as well as other coalitions including IFEX, the international freedom of expression network, Reclaim Your Face, and Protect Not Surveil. In our EU policy work, we have advocated for fundamental principles like transparency, openness, and information self-determination. We emphasized that legislative acts should never come at the expense of protections that have served the internet well: Preserve what works. Fix what is broken. And EFF has made a real difference: We have ensured that recent internet regulation bills don’t turn social networks into censorship tools and safeguarded users’ right to private conversations. We also helped guide new fairness rules in digital markets to focus on what is really important: breaking the chokehold of major platforms over the internet.

Recognizing the internet’s global reach, we have also stressed that lawmakers must consider the global impact of regulation and enforcement, particularly effects on vulnerable groups and underserved communities. As part of this work, we facilitate a global alliance of civil society organizations representing diverse communities across the world to ensure that non-European voices are heard in Brussels’ policy debates.

Our Teams

Today, we have a robust policy team that works to influence policymakers in Europe. Led by International Policy Director Christoph Schmon and supported by Assistant Director of EU Policy Svea Windwehr, both of whom are based in Europe, the team brings a set of unique expertise in European digital policy making and fundamental rights online. They engage with lawmakers, provide policy expertise and coordinate EFF’s work in Europe.

But legislative work is only one piece of the puzzle, and as a collaborative organization, EFF pulls expertise from various teams to shape policy, build capacity, and campaign for a better digital future. Our teams engage with the press and the public through comprehensive analysis of digital rights issues, educational guides, activist workshops, press briefings, and more. They are active in broad coalitions across the EU and the UK, as well as in East and Southeastern Europe.

Our work does not only span EU digital policy issues. We have been active in the UK advocating for user rights in the context of the Online Safety Act, and also work on issues facing users in the Balkans or accession countries. For instance, we recently collaborated with Digital Security Lab Ukraine on a workshop on content moderation held in Warsaw, and participated in the Bosnia and Herzegovina Internet Governance Forum. We are also an active member of the High-Level Group of Experts for Resilience Building in Eastern Europe, tasked to advise on online regulation in Georgia, Moldova and Ukraine.

EFF on Stage

In addition to all of the behind-the-scenes work that we do, EFF regularly showcases our work on European stages to share our mission and message. You can find us at conferences like re:publica, CPDP, Chaos Communication Congress, or Freedom not Fear, and at local events like regional Internet Governance Forums. For instance, last year Director for International Freedom of Expression Jillian C. York gave a talk with Svea Windwehr at Berlin’s re:publica about transparency reporting. More recently, Senior Speech and Privacy Activist Paige Collings facilitated a session on queer justice in the digital age at a workshop held in Bosnia and Herzegovina.

There is so much more work to be done. In the next posts in this series, you will learn more about what EFF will be doing in Europe in 2025 and beyond, as well as some of our lessons and successes from past struggles.

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.

This year, a far-reaching, complex new piece of legislation comes into effect in EU: the Digital Markets Act (DMA), which represents some of the most ambitious tech policy in European history. We don’t love everything in the DMA, but some of its provisions are great, because they center the rights of users of technology, and they do that by taking away some of the control platforms exercise over users, and handing that control back to the public who rely on those platforms.

Our favorite parts of the DMA are the interoperability provisions. IP laws in the EU (and the US) have all but killed the longstanding and honorable tradition of adversarial interoperability: that’s when you can alter a service, program or device you use, without permission from the company that made it. Whether that’s getting your car fixed by a third-party mechanic, using third-party ink in your printer, or choosing which apps run on your phone, you should have the final word. If a company wants you to use its official services, it should make the best services, at the best price – not use the law to force you to respect its business-model.

It seems the EU agrees with us, at least on this issue. The DMA includes several provisions that force the giant tech companies that control so much of our online lives (AKA “gatekeeper platforms”) to provide official channels for interoperators. This is a great idea, though, frankly, lawmakers should also restore the right of tinkerers and hackers to reverse-engineer your stuff and let you make it work the way you want.

One of these interop provisions is aimed at app stores for mobile devices. Right now, the only (legal) way to install software on your iPhone is through Apple’s App Store. That’s fine, so long as you trust Apple and you think they’re doing a great job, but pobody’s nerfect, and even if you love Apple, they won’t always get it right – like when they tell you you’re not allowed to have an app that records civilian deaths from US drone strikes, or a game that simulates life in a sweatshop, or a dictionary (because it has swear words!). The final word on which apps you use on your device should be yours.

Which is why the EU ordered Apple to open up iOS devices to rival app stores, something Apple categorically refuses to do. Apple’s “plan” for complying with the DMA is, shall we say, sorely lacking (this is part of a grand tradition of American tech giants wiping their butts with EU laws that protect Europeans from predatory activity, like the years Facebook spent ignoring European privacy laws, manufacturing stupid legal theories to defend the indefensible).

Apple’s plan for opening the App Store is effectively impossible for any competitor to use, but this goes double for anyone hoping to offer free and open source software to iOS users. Without free software – operating systems like GNU/Linux, website tools like WordPress, programming languages like Rust and Python, and so on – the internet would grind to a halt.

Our dear friends at Free Software Foundation Europe (FSFE) have filed an important brief with the European Commission, formally objecting to Apple’s ridiculous plan on the grounds that it effectively bars iOS users from choosing free software for their devices.

FSFE’s brief makes a series of legal arguments, rebutting Apple’s self-serving theories about what the DMA really means. FSFE shoots down Apple’s tired argument that copyrights and patents override any interoperability requirements. U.S. courts have been inconsistent on this issue, but we’re hopeful that the Court of Justice of the E.U. will reject the “intellectual property trump card.” Even more importantly, FSFE makes moral and technical arguments about the importance of safeguarding the technological self-determination of users by letting them choose free software, and about why this is as safe – or safer – than giving Apple a veto over its customers’ software choices.

Apple claims that because you might choose bad software, you shouldn’t be able to choose software, period. They say that if competing app stores are allowed to exist, users won’t be safe or private. We disagree – and so do some of the most respected security experts in the world.

It’s true that Apple can use its power wisely to ensure that you only choose good software. But it’s also used that power to attack its users, like in China, where Apple blocked all working privacy tools from iPhones and then neutered a tool used to organize pro-democracy protests.

It’s not just in China, either. Apple has blanketed the world with billboards celebrating its commitment to its users’ privacy, and they made good on that promise, blocking third-party surveillance (to the $10 billion dollar chagrin of Facebook). But right in the middle of all that, Apple also started secretly spying on iOS users to fuel its own surveillance advertising network, and then lied about it.

Pobody’s nerfect. If you trust Apple with your privacy and security, that’s great. But for people who don’t trust Apple to have the final word – for people who value software freedom, or privacy (from Apple), or democracy (in China), users should have the final say.

We’re so pleased to see the EU making tech policy we can get behind – and we’re grateful to our friends at FSFE for holding Apple’s feet to the fire when they flout that law.

The European Union’s new Digital Markets Act (DMA) is a complex, many-legged beast, but at root, it is a regulation that aims to make it easier for the public to control the technology they use and rely on.  

One DMA rule forces the powerful “gatekeeper” tech companies to allow third-party app stores. That means that you, the owner of a device, can decide who you trust to provide you with software for it.  

Another rule requires those tech gatekeepers to offer interoperable gateways that other platforms can plug into - so you can quit using a chat client, switch to a rival, and still connect with the people you left behind (similar measures may come to social media in the future). 

There’s a rule banning “self-preferencing.” That’s when platforms push their often inferior, in-house products and hide superior products made by their rivals. 

And perhaps best of all, there’s a privacy rule, reinforcing the eight-year-old General Data Protection Regulation, a strong, privacy law that has been flouted  for too long, especially by the largest tech giants. 

In other words, the DMA is meant to push us toward a world where you decide which software runs on your devices,  where it’s easy to find the best products and services, where you can leave a platform for a better one without forfeiting your social relationships , and where you can do all of this without getting spied on. 

If it works, this will get dangerously close to better future we’ve spent the past thirty years fighting for. 

There’s just one wrinkle: the Big Tech companies don’t want that future, and they’re trying their damndest to strangle it in its cradle.

 Right from the start, it was obvious that the tech giants were going to war against the DMA, and the freedom it promised to their users. Take Apple, whose tight control over which software its customers can install was a major concern of the DMA from its inception.

Apple didn’t invent the idea of a “curated computer” that could only run software that was blessed by its manufacturer, but they certainly perfected it. iOS devices will refuse to run software unless it comes from Apple’s App Store, and that control over Apple’s customers means that Apple can exert tremendous control over app vendors, too. 

 Apple charges app vendors a whopping 30 percent commission on most transactions, both the initial price of the app and everything you buy from it thereafter. This is a remarkably high transaction fee —compare it to the credit-card sector, itself the subject of sharp criticism for its high 3-5 percent fees. To maintain those high commissions, Apple also restricts its vendors from informing their customers about the existence of other ways of paying (say, via their website) and at various times has also banned its vendors from offering discounts to customers who complete their purchases without using the app.  

Apple is adamant that it needs this control to keep its customers safe, but in theory and in practice, Apple has shown that it can protect you without maintaining this degree of control, and that it uses this control to take away your security when it serves the company’s profits to do so. 

Apple is worth between two and three trillion dollars. Investors prize Apple’s stock in large part due to the tens of billions of dollars it extracts from other businesses that want to reach its customers. 

The DMA is aimed squarely at these practices. It requires the largest app store companies to grant their customers the freedom to choose other app stores. Companies like Apple were given over a year to prepare for the DMA, and were told to produce compliance plans by March of this year. 

But Apple’s compliance plan falls very short of the mark: between a blizzard of confusing junk fees (like the €0.50 per use “Core Technology Fee” that the most popular apps will have to pay Apple even if their apps are sold through a rival store) and onerous conditions (app makers who try to sell through a rival app store are have their offerings removed from Apple’s store, and are permanently  banned from it), the plan in no way satisfies the EU’s goal of fostering competition in app stores. 

That’s just scratching the surface of Apple’s absurd proposal: Apple’s customers will have to successfully navigate a maze of deeply buried settings just to try another app store (and there’s some pretty cool-sounding app stores in the wings!), and Apple will disable all your third-party apps if you take your phone out of the EU for 30 days. 

Apple appears to be playing a high-stakes game of chicken with EU regulators, effectively saying, “Yes, you have 500 million citizens, but we have three trillion dollars, so why should we listen to you?” Apple inaugurated this performance of noncompliance by banning Epic, the company most closely associated with the EU’s decision to require third party app stores, from operating an app store and terminating its developer account (Epic’s account was later reinstated after the EU registered its disapproval). 

It’s not just Apple, of course.  

The DMA includes new enforcement tools to finally apply the General Data Privacy Regulation (GDPR) to US tech giants. The GDPR is Europe’s landmark privacy law, but in the eight years since its passage, Europeans have struggled to use it to reform the terrible privacy practices of the largest tech companies. 

Meta is one of the worst on privacy, and no wonder: its entire business is grounded in the nonconsensual extraction and mining of billions of dollars’ worth of private information from billions of people all over the world. The GDPR should be requiring Meta to actually secure our willing, informed (and revocable) consent to carry on all this surveillance, and there’s good evidence that more than 95 percent of us would block Facebook spying if we could. 

Meta’s answer to this is a “Pay or Okay” system, in which users who do not consent to Meta’s surveillance will have to pay to use the service, or be blocked from it. Unfortunately for Meta, this is prohibited (privacy is not a luxury good that only the wealthiest should be afforded).  

Just like Apple, Meta is behaving as though the DMA permits it to carry on its worst behavior, with minor cosmetic tweaks around the margins. Just like Apple, Meta is daring the EU to enforce its democratically enacted laws, implicitly promising to pit its billions against Europe’s institutions to preserve its right to spy on us. 

These are high-stakes clashes. As the tech sector grew more concentrated, it also grew less accountable, able to substitute lock-in and regulatory capture for making good products and having their users’ backs. Tech has found new ways to compromise our privacy rights, our labor rights, and our consumer rights - at scale. 

After decades of regulatory indifference to tech monopolization, competition authorities all over the world are taking on Big Tech. The DMA is by far the most muscular and ambitious salvo we’ve seen. 

Seen in that light, it’s no surprise that Big Tech is refusing to comply with the rules. If the EU successfully forces tech to play fair, it will serve as a starting gun for a global race to the top, in which tech’s ill-gotten gains - of data, power and money - will be returned to the users and workers from whom that treasure came. 

The architects of the DMA and DSA foresaw this, of course. They’ve announced investigations into Apple, Google and Meta, threatening fines of 10 percent of the companies’ global income, which will double to 20 percent if the companies don’t toe the line. 

It’s not just Big Tech that’s playing for all the marbles - it’s also the systems of democratic control and accountability. If Apple can sabotage the DMA’s insistence on taking away its veto over its customers’ software choices, that will spill over into the US Department of Justice’s case over the same issue, as well as the cases in Japan and South Korea, and the pending enforcement action in the UK. 

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. 

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. 

Today we join a set of 56 experts from organizations such as Google, Panasonic, Citizen Lab, Trend Micro and many others in an open letter calling on the European Commission, European Parliament, and Spain’s Ministry of Economic Affairs and Digital Transformation to reconsider the obligatory vulnerability reporting mechanisms built into Article 11 of the EU’s proposed Cyber-Resilience Act (CRA). As we’ve pointed out before, this reporting obligation raises major cybersecurity concerns. Broadening the knowledge of unpatched vulnerabilities to a larger audience will increase the risk of exploitation, and software publishers being forced to report these vulnerabilities to government regulators introduces the possibility of governments adding it to their offensive arsenals. These aren’t just theoretical threats: vulnerabilities stored on Intelligence Community infrastructure have been breached by hackers before.

Technology companies and others who create, distribute, and patch software are in a tough position. The intention of the CRA is to protect the public from companies who shirk their responsibilities by leaving vulnerabilities unpatched and their customers open to attack. But companies and software publishers who do the right thing by treating security vulnerabilities as well-guarded secrets until a proper fix can be applied and deployed now face an obligation to disclose vulnerabilities to regulators within 24 hours of exploitation. This significantly increases the danger these vulnerabilities present to the public. As the letter points out, the CRA “already requires software publishers to mitigate vulnerabilities without delay” separate from the reporting obligation. The letter also points out that this reporting mechanism may interfere with the collaboration and trusted relationship between companies and security researchers who work with companies to produce a fix.

The letter suggests to either remove this requirement entirely or change the reporting obligation to be a 72-hour window after patches are made and deployed. It also calls on European law- and policy-makers to prohibit use of reported vulnerabilities “for intelligence, surveillance, or offensive purposes.” These changes would go a long way in ensuring security vulnerabilities discovered by software publishers don’t wind up being further exploited by falling into the wrong hands.

Separately, EFF (and others) have pointed out the dangers the CRA presents to open-source software developers by making them liable for vulnerabilities in their software if they so much as solicit donations for their efforts. The obligatory reporting mechanism and open-source liability clauses of the CRA must be changed or removed. Otherwise, software publishers and open-source developers who are doing a public service will fall under a burdensome and undue liability.