Obtain a prohibited-practice analysis tied to intended: Which evidence should resolve approval?
Potentially prohibited conduct must be analyzed before relying on notices, conformity evidence, or contracts.
The question
Under the EU AI Act, assume relevant duties apply to a software procurement decision. The vendor offers a system that ranks workers for assignments and includes an undisclosed feature that may use deceptive prompts designed to materially distort choices and cause significant harm. A user notice is available, but the intended purpose and feature behavior remain unclear. Which evidence should resolve approval?
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- Contractually restrict assignment ranking while leaving the suspected prompts untested.Contractual restrictions may narrow use, but they do not establish what the feature does or whether the remaining behavior is prohibited.
- Obtain a prohibited-practice analysis tied to intended purpose and behavior. ✓This evidence directly tests the suspected Article 5 practice against the system’s intended purpose and actual operation before approval.
- Obtain the vendor’s conformity-assessment report.A conformity assessment may address high-risk obligations, but it does not by itself resolve whether the feature is a prohibited practice.
- Require a user notice before deployment.A notice may address transparency, but it does not determine whether the underlying practice is prohibited.
The trap
Determine whether conduct is prohibited before evaluating notices or operational safeguards. How to remember it
Potentially prohibited conduct must be analyzed before relying on notices, conformity evidence, or contracts.
How many of these would you get right?
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