21st Sep 2023


The AI Act should not contain exemptions for 'national security'

Listen to article

It is not rare for the EU Council to be out of touch with public opinion. This has happened once again with the EU AI Act, by exempting AI systems developed or used for 'national security purposes' from oversight and controls. We are looking to the EU Commission and the Parliament to remedy this.

'National security' means different things to different people, lacking a strict, agreed definition. Therefore, any exemption for its sake is vague from the outset and open to abuse. It is highly dependent on national government classifications, which could use their definition to label their citizens or interest groups (e.g. climate protestors) as 'extremist' or 'terrorist'.

Read and decide

Join EUobserver today

Become an expert on Europe

Get instant access to all articles — and 20 years of archives. 14-day free trial.

... or subscribe as a group

Within the context of using powerful AI tools, such as facial recognition for surveillance, a 'national security' exemption can harm our fundamental rights and freedoms. Surveillance has been already causing a chilling effect on the rights to protest and freedom of speech, as well as being harmful to free and open democracies.

European citizens recognise this threat. In a result from 12 European countries, a representative sample of citizens provided largely unison views on the use of AI by public institutions, especially in the context of national security.

Over half of adults are concerned about the use of AI in national security or defence, and a clear majority (over 70 percent) thought that governments should always respect the rights of all individuals and groups in this context — meaning, without exemptions.

Moreover, nearly two-thirds would feel concerned if another EU country they were travelling to had fewer protections of their rights and freedoms when it comes to the use of AI by secret services — an easily imaginable scenario if this exemption is included

It seems that EU Member States are out of touch with what security means to their citizens. Based on the proposed EU AI Act, any AI systems that would pose a high risk to people's rights (such as AI in the policing and border control context) would need to be developed and used under increased scrutiny and assessment.

The original Commission's proposal did not include specific exemptions regarding AI developed or used for national security purposes, leaving the matter to be clarified under the rules on the division of competence between the EU and Member States.

The Council, however, from its first compromise proposal, indicated that member states want to remove the rules for their use of AI in defence and national security. The Council even expanded that blanket exemption in the latest leaked compromise text to include not only AI systems developed or used for national security purposes in the EU, but also AI systems whose outputs are used in the Union for such purposes — regardless if the actors are public or private bodies.

The Parliament, on the other hand, is likely to side with the people, gearing up to fight the exemptions, as these clearly undermine any built-in prohibitions and safeguards in the EU AI Act.

Banning most intrusive biometric identification in public spaces has little meaning if vague exemptions claimed by national governments can apply in a patchwork of 27 different legal rules across the EU. How Brussels diplomats will explain these 27 regulatory frameworks for national security AI systems to the private sector, already grunting about fragmented rules, remains to be seen. The extension might also have an important impact outside the EU, as governments across the globe look to European regulation as a blueprint.

In our latest legal analysis, ECNL debunked the narrative of Member States' "untouchable national competence" regarding national security issues, favoured by Brussels diplomats.

In fact, CJEU rulings shows there is no inherent conflict between EU internal market regulations and Member States' national security interests. As the EU AI Act will be an internal market regulation, there is no justification to completely exclude systems developed for this purpose from scope.

The commission and parliament must act to stop this exemption from passing into law.

Author bio

Vanja is ECNL’s Program Director overseeing global and EU engagement programmes. She leads the work on securitisation and counter-terrorism / anti-money laundering measures that impact civil society, as well as ECNL’s engagement in digital and artificial intelligence (AI) issues affecting civic freedoms. She is an external PhD candidate on AI and Law at the University of Amsterdam’s Civic AI Lab.


The views expressed in this opinion piece are the author's, not those of EUobserver.


The challenge of artificial intelligence

The fast-growing impact of artificial intelligence will be the biggest challenge for business and consumers in Europe's single market of tomorrow.


Forecasting and profiling, or bias and discrimination?

A showdown is likely among MEPs and governments over the EU Commission's proposal on Artificial Intelligence and fundamental rights. The legislation, likely to be agreed next year, will be key in fighting discrimination in the virtual and real world.


No place for dystopianism in digital EU

What's a credible dystopian nightmare for a leading writer on AI and Big Data? "It's going to be the size of a mosquito and it'll be an aerial drone".

Latest News

  1. Report: Tax richest 0.5%, raise €213bn for EU coffers
  2. EU aid for Africa risks violating spending rules, Oxfam says
  3. Activists push €40bn fossil subsidies into Dutch-election spotlight
  4. Europe must Trump-proof its Ukraine arms supplies
  5. Antifascism and fascism are opposites, whatever elites say
  6. MEPs back Germany's Buch to lead ECB supervisory arm
  7. Russia to blame for Azerbaijan attack, EU says
  8. Fresh dispute may delay EU-wide migration reforms

Stakeholders' Highlights

  1. International Medical Devices Regulators Forum (IMDRF)Join regulators, industry & healthcare experts at the 24th IMDRF session, September 25-26, Berlin. Register by 20 Sept to join in person or online.
  2. UNOPSUNOPS begins works under EU-funded project to repair schools in Ukraine
  3. Georgia Ministry of Foreign AffairsGeorgia effectively prevents sanctions evasion against Russia – confirm EU, UK, USA
  4. International Medical Devices Regulators Forum (IMDRF)Join regulators & industry experts at the 24th IMDRF session- Berlin September 25-26. Register early for discounted hotel rates
  5. Nordic Council of MinistersGlobal interest in the new Nordic Nutrition Recommendations – here are the speakers for the launch
  6. Nordic Council of Ministers20 June: Launch of the new Nordic Nutrition Recommendations

Stakeholders' Highlights

  1. International Sustainable Finance CentreJoin CEE Sustainable Finance Summit, 15 – 19 May 2023, high-level event for finance & business
  2. ICLEISeven actionable measures to make food procurement in Europe more sustainable
  3. World BankWorld Bank Report Highlights Role of Human Development for a Successful Green Transition in Europe
  4. Nordic Council of MinistersNordic summit to step up the fight against food loss and waste
  5. Nordic Council of MinistersThink-tank: Strengthen co-operation around tech giants’ influence in the Nordics
  6. EFBWWEFBWW calls for the EC to stop exploitation in subcontracting chains

Join EUobserver

Support quality EU news

Join us