When National Security Becomes a Shield for Evading AI Accountability

2026-02-16 · Source: Tech Policy Press · Field: Legal & Regulatory — Legal Technology (LegalTech), Compliance & Risk Management, Regulatory Affairs & Government Relations · Depth: Advanced, long

Summary

EU member states are increasingly using AI in state security and surveillance, often bypassing regulatory safeguards through broad national security exemptions in legislation like Article 2 of the EU AI Act. This practice, fueled by a loosely defined "national security," allows states to deploy AI for automated decision-making, expanded surveillance, and counterterrorism efforts with minimal oversight, potentially eroding fundamental rights. The Court of Justice of the European Union (CJEU) has provided some guidance, linking national security primarily to counterterrorism and imposing limits requiring genuine and foreseeable threats. Case studies from France, Hungary, and Serbia illustrate how governments invoke national security to justify algorithmic surveillance, facial recognition, and social service algorithms, sometimes denying access to source code. Spain's Supreme Court, however, rejected a national security claim to compel access to the BOSCO algorithm's source code in 2025.

Key takeaway

For CTOs and legal counsel overseeing AI deployments in Europe, you must scrutinize any invocation of national security exemptions for AI systems. Ensure your organization's AI initiatives, especially those involving surveillance or sensitive data, adhere to the strict conditions set by CJEU case law, demanding genuine and foreseeable threats. Proactively engage with legal experts to assess compliance risks and prepare for potential litigation, as courts are increasingly challenging broad national security claims to compel transparency and accountability.

Key insights

National security exemptions in EU AI legislation create significant regulatory gaps, enabling unchecked AI deployment.

Principles

• National security must be genuine and present or foreseeable.
• CJEU case law provides a legal compass for defining national security.
• Unrepresentative training data can lead to biased AI outcomes.

Method

Civil society can counter AI accountability evasion by collaborating with investigative journalists, pursuing strategic litigation, engaging institutional stakeholders, and building cross-border coalitions.

In practice

• Investigate AI system objectives and potential misuse.
• Challenge national security exemptions in court.
• Request access to public algorithm source code.

Topics

• AI Accountability
• EU AI Act
• National Security Exemptions
• Algorithmic Surveillance
• Fundamental Rights

Best for: CTO, VP of Engineering/Data, Director of AI/ML, Policy Maker, AI Ethicist, Legal Professional

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Editorial summary, takeaway, and curation by AIssential. Original article published by Tech Policy Press.