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