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Majandus- ja Kommunikatsiooniministeerium · 8. juuni 2023
Viit
24.1-6/2023/3131-1
Registreeritud
8. juuni 2023
Dokumendi liik
Sissetulev kiri
Adressaat
D. N.
Saabumis/saatmisviis
e-post
Funktsioon
24.1 EL ja rahvusvahelise koostöö korraldamine
Sari
24.1-6/S Rahvusvahelise koostöö korraldamisega seotud kirjavahetus (Arhiiviväärtuslik)
Toimik
24.1-6/2023
Vastutaja
Astrid Valtna-Dvořák (Majandus- ja Kommunikatsiooniministeerium, Kantsleri valdkond, EL ja rahvusvahelise koostöö osakond)

Failid

  • 📎0523 AIA NatSec Estonia.pdf339 KB
  • 📎E-kiri.eml482 KB

Sisu (failidest)

To: Kristjan Järvan, Minister for Entrepreneurship and Information Technology To: Lauri Läänemets, Minister of the Interior Cc: Marten Kokk, Deputy Permanent Representative of Estonia to the EU 6th June 2023 Your Excellencies, National Security exemption in the proposed EU AI Act We are writing to express our serious concern with the current EU Council position which would weaken human rights safeguards in the proposed EU Artificial Intelligence Act (AIA). Given the potential human rights implications both within the EU and globally, we call on the Estonian Government to initiate a dialogue with legal and human rights experts to review the Council’s position on national security ahead of the start of trialogue negotiations. At the EU Telecommunications Council on 6 December 2022, all EU Member States including Estonia agreed to adopt a General Approach on the AIA, which will form the basis for trialogue negotiations later this year with the European Parliament. This General Approach notably amends the original European Commission proposal and introduces a new blanket exemption for AI systems placed on the market, put into service, or used for the purpose of ‘national security’. Such a blanket exemption introduces a significant loophole that would automatically exempt certain AI systems from scrutiny and limit the applicability of human rights safeguards. Many NGOs have strongly opposed this exemption in Brussels1 and the UN Special Rapporteur on Human Rights and Counter Terrorism has made an explicit call for “the revision of the proposed legislation of the European Union on AI to remove national security exclusions” warning of “a terrible precedent regionally and globally”2. Polling carried out across 12 EU member states has also showed that the use of AI for national security is an issue of serious public concern3 and investors have raised their own concerns, supporting the regulation of AI for national security4. As civil society has warned, a blanket exemption based on vague national security grounds will prevent “effective public transparency about the use of high-risk systems in the areas which have perhaps the most severe impact on fundamental rights5.” Lack of transparency consequently denies people impacted by AI systems the right to challenge potentially life-changing decisions and seek remedy and redress in case of harm and could violate their right to a fair trial6. 1 ‘Ensure fundamental rights protections in the Council position on the AI Act’ EDRi letter to Czech Presidency of the EU, 17 October 2022 https://edri.org/wp-content/uploads/2022/10/CZ-Minister-Digitalisation-letter-AI-act.pdf 2 ‘Human rights implications of the development, use and transfer of new technologies in the context of counter-terrorism and countering and preventing violent extremism’ Report to the 52nd session of the UN Human Rights Council, 1 March 2023 https://www.ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/sessions-regular/session52/advance- version/A_HRC_52_39_AdvanceEditedVersion.docx 3 ‘New Poll: Public fears over government use of Artificial Intelligence’ ECNL, 14 November 2022 https://ecnl.org/news/new-poll-public- fears-over-government-use-artificial-intelligence 4 ‘Investor statement in support of digital rights regulations’ Investor Alliance for Human Rights, 15 February 2023 https://investorsforhumanrights.org/sites/default/files/attachments/2023-02/FINAL%20Investor%20Statement%20AI%20Act%20w- signatories%202-14-23_0.pdf 5 ‘Ensure fundamental rights protections in the Council position on the AI Act’ EDRi letter to Czech Presidency of the EU, 17 October 2022 https://edri.org/wp-content/uploads/2022/10/CZ-Minister-Digitalisation-letter-AI-act.pdf 6 Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, Official Journal L 142, 1.6.2012, p. 1–10, http://data.europa.eu/eli/dir/2012/13/oj We are not aware of any opposition raised in Council to the need for human rights safeguards in the development of AI for national security in principle, or any questioning of the relevance of international human rights law in this area. We understand that the proposed exemption has been agreed by Council due to concerns raised over EU competence on national security issues, although this is legally disputed7 and requires detailed examination. EU case law has established that “although it is for the Member States to define their essential security interests and to adopt appropriate measures to ensure their internal and external security, the mere fact that a national measure has been taken for the purpose of protecting national security cannot render EU law inapplicable and exempt the Member States from their obligation to comply with that law”8. We therefore call on the Estonian government to initiate a discussion to reconsider the blanket national security exemption in the Council General Approach. In the meantime, we would also like to inquire whether Estonia: • has existing national legislation that guarantees the equivalent level of protection of human rights in the area of national security as the AIA, including rules on prohibited AI practices and requirements for providers and users of AI systems; • has conducted analysis and presented plans for additional national legislation to regulate AI developed for national security purposes, and how this will be developed in full compliance with human rights obligations and in meaningful consultation with civil society stakeholders. We would be very happy to meet with you to discuss this important matter further, or to provide further information or clarification. Yours sincerely, Rasha Abdul Rahim Programme Director, Amnesty Tech Amnesty International, International Secretariat Vanja Skoric Program Director European Center for Not-for-Profit Law Stichting (ECNL) 7 ‘Legal Opinion on the implications of the exclusion from new binding European instruments on the use of AI in military, national security and transnational law enforcement contexts’ Prof. Douwe Korff, 18 October 2022 https://ecnl.org/news/rights-free-zone-blanket-national- security-exemption-ai-legislation 8 Judgment of the Court (Grand Chamber) in Case C-623/17, 6 October 2020 https://curia.europa.eu/juris/document/document.jsf;jsessionid=DC1C6EE6335FCFE02B5D540D7C610EA2?text=&docid=232083&pageInde x=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=2401090. Contact: David Nichols, European Center for Not-for-Profit Law Stichting, Riviervismarkt 5, 2513 AM, the Hague, Netherlands; [email protected] 2 Saatja: "David Nichols" <[email protected]> Saaja: [email protected], "MKM info" Teema: Joint letter: National Security exemption in EU AI Act Kuupäev: 2023-06-07 13:48 To: Kristjan Järvan, Minister for Entrepreneurship and Information Technology To: Lauri Läänemets, Minister of the Interior Your excellencies, Please find attached a joint letter from Amnesty International and ECNL regarding the Estonian government’s position on ‘national security’ in the new EU Artificial Intelligence Act (AIA). In this letter we express our concern at the current EU Council position to include a blanket exemption for national security in the AIA, which would present a significant loophole in human rights protection, without justification in existing EU law. The UN Special Rapporteur on Human Rights and Counter-Terrorism, Fionnuala Ní Aoláin, has warned of a ‘terrible precedent regionally and globally’ and called for a change in position ‘to remove national security exclusions’. Ahead of the start of trilogue negotiations in Brussels, we call on the Estonian government to initiate a discussion to reconsider the Council’s current position on such a blanket exemption, including through dialogue with legal and human rights experts. We are happy to provide any additional information or clarification, and would welcome the opportunity to discuss this matter with you further. Yours sincerely, David Nichols (he/him) Senior Advocacy Advisor European Center for Not-For-Profit Law Stichting (ECNL) +44 7378 908348 @dave_nichols @enablingNGOlaw EU Transparency Register: 052513138393-62
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