Protecting citizens must never come at the expense of their fundamental rights. That is why civic freedoms must be central to ongoing debates about AI and national security. However, the European regulatory standards on AI recently adopted (for instance, the EU AI Act and the CoE Framework Convention on AI and Human Rights, the Rule of Law and Democracy) do not cover AI designed, developed, and deployed for national security and national defence matters. In any case, their use must still remain consistent with applicable international law, including international human rights obligations.
The proposed Act on the Protection of National Security by the Intelligence and Security Services in the Netherlands now overhauls the regulatory framework and introduces a new section on the use of automation intelligence services for defence activities. The new provisions allow automation by default, that is, a general authorisation for intelligence services to automate their activities in the broadest possible sense, covering all means and techniques that can be used to replace or support human labour.
Given our work at the intersection of human rights and technology, including artificial intelligence, ECNL has raised serious fundamental rights concerns in the bill and proposed the following main recommendations:
- Review the existing “automation by default” approach by including stronger explicit safeguards;
- Clarify that automation, in relation to the interest served by it, does not have disproportionate consequences on the fundamental rights, rule of law and democracy;
- Delete the provision under which an automated application is automatically considered not high-risk if its use is customary in society;
- Include, at a minimum, a mandatory pre-assessment of the “reliability” of the automated application in emergency procedures and an impact assessment of the risks posed to human rights; and
- Clarify the definition of decisions made “solely on the basis of automated results,” including what human oversight should look like in practice to be meaningful.
As a member of the CoE, the Netherlands must comply with the European Convention on Human Rights, and take into account relevant rulings of the European Court of Human Rights’ and CoE soft-law standards (such as the CoE Handbook on Human Rights and AI).
The government consultation on this Act ended on 11 October. The government will now collect and review responses from citizens, companies, experts, and organisations, and may revise the draft law based on all the feedback before submitting it to the Council of State for advice. Going forward, Parliament will table it for discussion and potential adoption, and ECNL will continue to follow up to ensure any final text incorporates the recommendations.
For more details, read our submission below and join us and Dutch CSOs in advocating for the Dutch government to comply with international human rights standards in national security regulation.