Why “Chat Control” Would Likely Be Unconstitutional in the United States

The EU’s proposed “Chat Control” law (formally Regulation to Prevent and Combat Child Sexual Abuse) aims to scan private messages for illegal content. In the U.S., such a law would likely violate constitutional rights. The First Amendment protects not just speech but also the right to receive information and associate freely. Government-compelled monitoring and filtering of user communications could cause coerced review of large amounts of lawful speech, creating overbreadth problems and unconstitutional prior restraints.  Laws that discourage free expression by threatening broad surveillance and restricting more speech than necessary have been subject to strict scrutiny and struck down. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002) [“The overbreadth doctrine prohibits the government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.”].

Requiring all messages or encrypted content to be scanned would also raise issues under the Fourth Amendment, which protects against unreasonable searches. The Fourth Amendment requires specific reasons and judicial oversight. Forcing companies to search all users’ messages would constitute a general search, which courts have rejected. The Supreme Court has emphasized privacy in digital data, as seen in cases like Riley v. California and Carpenter v. United States, which require warrants for certain digital searches (i.e. cell phones, and cell-site data).

Compelled access or “backdoors” to encrypted communications would also likely be unconstitutional. The First Amendment protects not just speech but also the tools used to create and secure it, like computer code. Compelled changes to computer code could be seen as forced speech. From a Fourth Amendment perspective, a legal requirement that providers render communications readable to the government would undercut the “particularity” and “necessity” requirements for search warrants that distinguish targeted searches from indiscriminate surveillance.

Any U.S. law like “Chat Control” would need to pass strict scrutiny if it affects speech. This means the government must prove a compelling reason for the law and that it uses the least restrictive means. Courts have struck down broad attempts to regulate online content that also affect legal speech, as seen in Reno v. ACLU and Ashcroft v. ACLU. In summary, while fighting child exploitation is crucial, a U.S. “Chat Control” law would likely violate the First and Fourth Amendments by restricting free expression and allowing broad, suspicionless searches of private messages.