CODE, CONSENT, AND CONSTANT SURVEILLANCE: A PROPORTIONALITY ANALYSIS OF THE PROPOSED CSAM REGULATION

Abstract

This article provides a critical proportionality analysis of the proposed EU Child Sexual Abuse Material (CSAM) Regulation, often referred to as “Chat Control”. Drawing on a 2025 Presidency compromise text, the author examines whether mandatory message scanning aligns with the Court of Justice of the European Union’s (CJEU) jurisprudence on mass surveillance. By integrating the theoretical frameworks of Lawrence Lessig’s “Code is Law” and Michel Foucault’s “Panopticism,” the study highlights how technical error rates in AI and the use of “coerced consent” for scanning encrypted communications threaten the essence of privacy rights. The paper concludes that while child protection is a paramount objective, the current proposal fails the proportionality test and risks transforming Europe’s digital architecture into a permanent “digital panopticon”.