Legal Challenges And Safeguards The Use Of Ai In The National Security Domain

Legal Challenges And Safeguards The Use Of Ai In The National Security Domain Presented by: Dr. Jurić Date: 13 June 2024 Context - Overview of AI regulation as a global concern. - Al regulation in Europe: • April - May 2024: EU Artificial Intelligence Act ('Al Act') • 17 May 2024: Council of Europe Framework Convention on Artificial Intelligence and Human Rights, Democracy and the Rule of Law ('CoE Al Convention') - Military and defense Al • Al in the military and defense sector is excluded from the scope of both the EU AI Act and the CoE Al Convention - What about Al used for national security purposes? Al In The National Security Domain - It can be used for various purposes in national security domain (surveillance systems, border control, threat assessments, facial recognition and mapping...) - So far, neither the CJEU nor the ECtHR have considered any "true" Al case, either in national security matters or outside of it - Are there any legal guarantees when Al is used in national security domain? Are there any safeguards applicable? How is the situation different from the one with the use of Al in military and defense? EU AI Act, Article 3 - This regulation does not apply to Al systems where and insofar they are... used with or without modification exclusively for military, defense or national security purposes, regardless of the type of entity carrying out those activities. COE Al Convention, Article 3(2) - A Party shall not be required to apply this Convention to activities within the lifecycle of artificial intelligence systems related to the protection of its national security interests, - With the understanding that such activities are conducted in a manner consistent with applicable international law, including international human rights law obligations, and with respect for its democratic institutions and processes. - In other words, Al Convention may not apply, but the ECHR will apply fully. National Security Activities Are Not Outside The Scope Of European Human Rights Legal Framework - ECHR applies • Rotaru v Romania (collection and storing of citizen's personal data by national security agency) - • Roman Zakharov v Russia (surveillance of electronic communications) • Glukhin v Russia (use of facial-recognition technologies) • Podchasov v Russia (storage and analysis of communication metadata) EU law applies: • La Quadrature du Net and Others (storage and analysis of communication metadata) Human Rights Framework Applicable To The Use Of Al In National Security Domain - 1 • Use od Al does not trigger human rights protection per se • Human rights protection will be triggered when the use of Al interferes with fundamental human right - 2 • The use of AI resulting in interference with fundamental right must pursue legitimate aim • National security is a legitimate aim - 3 • Every interference must be 'prescribed by law': (1) legal basis in domestic law, (2) accessibility, (3) foreseeability, (4) protection against arbitrary application - 4 • Every interference must respect the essence of right and be necessary in a democratic society Key Considerations - Al systems make decisions from data. Hence, strong human rights protection provided for personal data in Europe will impact processing and analytics through Al systems. - In Al, quantity of data matters. ECtHR is especially concerned with "automated and systematic data collection". Similarly, the CJEU cannot accept what it describes as "general and indiscriminate data retention". - Capabilities of Al increase daily. Courts are considering advancements in technology. ECtHR (Zakharov v Russia): it is essential to have clear, detailed rules on [surveillance], especially as the technology available for use is continually becoming more sophisticated. Gaughran v UK: The court is "aware of the possibility of rapid technological advances in this domain in particular concerning technology for facial recognition and facial mapping" - National security activities are typically conducted in secret. ECtHR stands firmly on the position that where measures are executed in secret, there is (1) lower threshold for bringing complaints and (2) greater need for safeguards against arbitrary application of the law. Human Rights Requirements - 1. Clear and foreseeable legal framework for the use of Al in national security - 2. Sensible conditions and safeguards supporting the necessity principle - 3. Effective oversight arrangements