EU legislators must close dangerous loophole in AI Act

Communiqué commun dont la LDH est signataire

The European Union is entering the final stage of negotiations on its Artificial Intelligence Act (AI Act), but Big Tech and other industry players have lobbied to introduce a major loophole to the high-risk classification process, undermining the entire legislation. We call on EU nlegislators to remove this loophole and maintain a high level of protection in the AI Act.

The EU AI Act has the potential to improve protections for people impacted by AI systems. In its original form, it outlined a list of ‘high-risk uses’ of AI, including AI systems used to monitor students, to assess consumers’ creditworthiness, to evaluate job-seekers, and to determine who gets access to welfare benefits.

The legislation requires developers and deployers of such ‘high-risk’ AI to ensure that their systems are safe, free from discriminatory bias, and to provide publicly accessible information about how their systems work. However, these benefits will be undermined by a dangerous loophole introduced into the high-risk classification process in Article 6.

In the original draft from the European Commission, an AI system was considered ‘high risk’ if it was to be used for one of the high-risk purposes listed in Annex III. However, the Council and the European Parliament have introduced a loophole that would allow developers of these systems decide themselves if they believe the system is ‘high-risk’.[1] The same company that would be subject to the law is given the power to unilaterally decide whether or not it should apply to them.

These changes to Article 6 must be rejected and the European Commission’s original riskclassification process must be restored. There must be an objective, coherent and legally certain process to determine which AI systems are ‘high-risk’ in the AI act.

If the changes to Article 6 are not reversed, the AI Act will enable AI developers to decide to exempt themselves from all substantive rules for high-risk systems. The AI Act would:
– introduce high legal uncertainty as to which systems are considered ‘high risk’;
– lead to fragmentation of the EU single market, with different interpretations of what constitutes ‘high-risk’ across Member States;
– result in Member State authorities facing severe challenges to enforce the legislation, without enough resources to monitor developers’ self-assessment sufficiently;
– allow unscrupulous developers to avoid the basic requirements of the law that are meant to make their systems safer and more reliable. This would put responsible AI developers at a disadvantage.

We urge lawmakers to reverse these changes and restore the Commission’s original language in Article 6. The AI Act must prioritise the rights of people affected by AI systems and ensure that AI development and use is both accountable and transparent.[2]

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[1] The Council text proposes to exclude high-risk systems where the output of the system is ‘purely accessory in respect of the relevant action or decision to be taken’. The European Parliament text states that a system is high risk only if it poses a ‘significant risk’ to fundamental rights, health and safety. If the developer considers their system does not pose such a risk, they must notify a national authority, which has 3 months to respond.
[2] 150 civil society organisations have called on the EU institutions to ensure the AI act protect’s peoples’ rights during the AI Act trilogues

Paris, le 7 septembre 2023

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