"How the German government decided not to protect people against the risks of AI", 8. December 2022

Today, EU member states’ ministers are meeting in Brussels to formally adopt the version of the AI Act that their governments agreed to. As it stands, it will not be in line with the German government’s vows to protect fundamental rights. Instead, it will propose lavish exemptions for security agencies to the detriment of people’s rights.

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Originally, based on the Commission’s draft AI Act, all high-risk AI systems that exist on the market would have to be registered by the provider in the EU database the AI Act foresees. As AlgorithmWatch and other human rights defenders called for, a meaningful transparency regime would also entail information on how these systems are actually used in practice. This use of AI in practice can entail significantly different – and significantly higher – risks compared to what can be known from the mere description of the system in the database supplied by the provider (the company developing and selling the system).

Contrary to its agreement laid down in the coalition treaty and in a sharp divergence from statements made earlier in the process, the German government has backtracked on positions that would help to protect people’s rights if affected by AI-based systems.

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But as Tagesspiegel Background reported, Germany had around the same time called for relaxing requirements in the areas of law enforcement, migration, asylum and border control. These are areas where standards should be particularly high because people affected have less means to defend themselves and are often already discriminated against. State actions can have massive consequences on their freedom, autonomy, and well-being. Soon after, the compromise text of the Council from October 19, 2022 already contained exceptions from the transparency regime for these domains. At this point, all evidence points to the conclusion that Germany’s call for a separate regulation of public authorities’ uses of AI isn't directed towards increasing the protection of fundamental rights anymore.

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But after months of negotiations, the draft general approach’s provisions on RBI in publicly accessible spaces still include many dangerous loopholes and limitations – so many, in fact, that the draft now rather enables the use of RBI instead of prohibiting it. As it stands, only ‘real-time’ RBI should be forbidden, and only law enforcement authorities or their subcontractors would be subject to these limitations. This means that private entities as well as public authorities – except law enforcement – are not covered by the ban, and the ban does not apply to RBI if not used in real-time but on stored data. What is more, even for law enforcement, a number of exceptions would apply – for example, when RBI is used to prevent threats to health, physical safety and terrorism or to identify alleged perpetrators of certain types of offences. Lastly, according to the Council, all the AI Act’s provisions, including the ban on RBI, should not apply in situations where member states allude to their ‘national security’.

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Sources in government and parliament have confirmed to AlgorithmWatch that both demands – to water-down restrictions on remote biometric identification and create more exemptions for AI-uses in law enforcement, migration, asylum and border control in the AI Act – originate from the interior ministry. It seems high time that Nancy Faeser is reminded of the promises the parties made in their coalition agreement – not only by her own party, the Social Democrats, but first and foremost by Marco Buschmann, the Liberal party justice minister, and the minister for economic affairs and climate action, Robert Habeck of the Green party.