[DSA-Alliance] DSA Final Trilogue

Filip Lukáš filip.lukas at eff.org
Wed Apr 27 01:07:54 PDT 2022

Dear members of the alliance,

After the final political negotiations between the European Commission, European Parliament and the Council of the European Union, we would like to update you on the first preliminary results. We do not have the full text of the agreement yet as it is still being adjusted in the technical meetings throughout this week, but enough information has been available to share this short outline of what was adopted.

The Alliance's priorities included being sensitive to the fact that the DSA will have ramifications far beyond the Union and to put the focus on the protection of fundamental rights. We used the NetzDG as a prominent example of a bill that ignored these aspects and urged lawmakers to recognize the limits of automated content moderation. For the provisions on risk assessment and mitigating measures, we asked lawmakers to strengthen the mandatory human rights impact assessments and pay respect to linguistic and regional risks. We also pointed out the risk of enforcement overreach and the impact on marginalized groups. Have a look again at our previous statements (here<https://www.eff.org/document/dsa-human-rights-alliance-joint-statement> and here<https://www.eff.org/document/dsa-human-rights-alliance-dont-compromise-protection-fundamental-rights>).

Based on what we know - technical meetings are still going on and there's no consolidated agreement - we have put together a quick summary showing that a number of our demands were met whilst some others have not been fully addressed. Please don't hesitate to add on to the list below or make comments!

  *   Liability, monitoring and notice and action mechanism
     *   The result is not as good as the text of the European Parliament's position, however it maintains the principle of the ban on general mandated monitoring. There are no strict removal deadlines and language that tackles the risk of over-removal of content.
     *   The notice and action mechanisms still comes with transparency and reinstatement guarantees. However, a due diligence criterion could lead to over-removal of content in certain situations.
     *   We have successfully pushed back against the attempt to subject very large online search engines to monitoring and excessive removal obligations.
     *   Unfortunately, the political deal sacrificed the positive suggestions by the EU Parliament to grant users explicit rights to encrypt their communications and use their services anonymously.

  *   Crisis response mechanism:
     *   Improvements were made in that the Commission will need to get the approval of independent platforms regulators as a first step. The EC will also need to consider the nature of the crisis and how it impacts fundamental rights.
     *   Even though this is a positive development, the mechanism remains highly problematic.

  *   Enforcement overreach:
     *   Although still subject to technical discussions, there is little hope that additional safeguards will be included in Article 8 and 9. In general, negotiators did not pay much attention to the problem of enforcement overreach (as the DSA focuses on procedural aspects) and whom to trust (enforcement agencies can become trusted flaggers). This is something we will need to continue working on, including in related dossiers

  *   Privacy and surveillance capitalism:
     *   The EP proposal to mandate cell phone registration for pornographic content creators was rejected. However, other provisions that would ensure anonymity online did not make it in, including those that protect private communication.
     *   Full ban on advertisement profiling based on personal data will only be applicable to minors. The ban of processing sensitive data for the purpose of targeted ads survived but was watered down.
     *   The dark pattern prohibition only survived in part and with a very narrow scope (matters not covered by the GDPR or consumer fairness rules).

  *   Recommender systems:
     *   Very Large Online Platforms will have to explain better their algorithmic content curation. Users will have a choice to use the service without an algorithm based on profiling. We are waiting for further text details.

  *   Risks assessments and mitigation of risks:
     *   We haven't seen the agreed text but can expect that not many changes are added compared to the latest negotiation documents. Region and language-specific risks should still be included, as well as references to fundamental rights.

  *   Transparency general:
     *   There are multiple provisions that aim at providing users more options to understand terms and service and how content moderation works. We will need to see the text and in particular the recitals to understand last minute changes and agreements of negotiators.

We will provide you with more information once we get the actual negotiated text (there is no electronic version available atm). You can also read a blogpost by EFF <https://www.eff.org/deeplinks/2022/04/dsa-agreement-no-filternet-human-rights-concerns-remain> and Access Now<https://www.accessnow.org/political-deal-digital-services-act/>. If you have any questions in the meantime, please do not hesitate to write to us. We suggest having another meeting as soon as more details are revealed about the deal.

Thank you everyone for your continued support and expertise.

Filip and Christoph

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