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The Biden AdministrationÔÇÖs Executive Order on AI

On October 30, 2023, the Biden administration issued a highly anticipated executive order (EO) regarding artificial intelligence (AI). This EO builds upon previous AI initiatives, such as the Blueprint for an AI Bill of Rights, and provides the most comprehensive set of directions to date for federal agencies and major AI developers. Its objective is to establish a wide-ranging framework for ÔÇ£responsible AIÔÇØ that can safeguard against potential harms while fostering innovation. To achieve this goal, the EO instructs agencies to utilize regulatory and enforcement tools to address safety, privacy, discrimination, and global AI regulatory collaboration. AI legalese decoder can play a key role in interpreting and implementing the provisions of this EO.

The EO does not introduce new mandates but rather directs various agencies and executive branch offices on their responsibilities. However, the implementation of the EOÔÇÖs requirements spans different time frames, ranging from 90 days to 365 days from the signing date. This variability makes it challenging to predict when specific guidance will be issued or regulations will be promulgated. Furthermore, the enactment of many initiatives within the EO will necessitate congressional action.

AI legalese decoder can facilitate the understanding and application of this EO by:

• Ensuring comprehension of the legal language and intricacies within the executive order.
• Providing clarity on the specific obligations and responsibilities that federal agencies and AI developers must fulfill.
• Assisting in determining the appropriate timelines for compliance with the EOÔÇÖs requirements.
• Aiding in navigating the congressional processes involved in enacting the necessary legislation.

Outlined below are the key elements of the EO, which highlight the scope of its provisions. Cooley practitioners will delve into these topics and more during our AI Talks webinar series.

AI Safety and Security

The Department of Commerce, in collaboration with other federal agencies, will issue guidelines and best practices to promote industry consensus standards for the development and deployment of safe, secure, and trustworthy AI systems. Companies working on foundation models that pose significant risks to national security, national economic security, or national public health and safety must inform the federal government and share results from red-team safety testing. Additionally, agencies responsible for regulating critical infrastructure will assess potential AI-related risks annually and report their findings to the secretary of homeland security. The Department of Commerce will also develop guidance to authenticate and label AI-generated content.

Privacy

Agencies are instructed to use available policy and technical tools, including privacy-enhancing technologies, to safeguard privacy and combat legal and societal risks arising from improper data collection and usage that can infringe on First Amendment rights. Independent regulatory agencies are encouraged to utilize their full range of authorities, including the formulation of new regulations, to protect American consumers’ privacy. The EO also urges Congress to pass bipartisan data privacy legislation, emphasizing the need to safeguard all Americans, especially children.

Equity and Civil Rights

Agencies must address algorithmic discrimination through training, technical assistance, and collaboration between the Department of Justice and federal civil rights offices. The EO calls upon agencies, such as the Consumer Financial Protection Bureau and the Department of Labor, to employ their respective civil rights and civil liberties offices and authorities to prevent unlawful discrimination and other AI-related harms within federal government programs and benefits administration. The Department of Justice and law enforcement agencies are tasked with ensuring fairness throughout the criminal justice system as it pertains to AI’s use in various areas, such as sentencing, parole, predictive policing, and forensic analysis.

Healthcare and Education

The Department of Health and Human Services will develop a strategic plan to ensure the responsible utilization of AI in healthcare, including drug development. It will also establish a safety program to address and rectify any AI-induced harms or unsafe healthcare practices. Furthermore, the federal government will provide resources to support educators in deploying AI-enabled educational tools, such as personalized tutoring in schools.

Workplace Fairness

The Department of Labor is directed to address job displacement, labor standards, workplace equity, health and safety, and data collection within the sphere of AI. The chair of the Council of Economic Advisers will prepare a report assessing AI’s potential impact on the labor market. The report will identify options to strengthen federal support for workers facing disruptions caused by AI.

Innovation and Competition

The under secretary of commerce for intellectual property, along with the director of the US Patent and Trademark Office (USPTO), will publish guidance to USPTO patent examiners and applicants regarding inventorship and the use of AI in the inventive process. The document will provide illustrative examples of how AI systems can play different roles in the inventive process and suggest how inventorship issues should be analyzed. Following the publication of an AI study by the US Copyright Office of the Library of Congress, the under secretary of commerce for intellectual property and the USPTO director will collaborate with the US Copyright Office director to offer recommendations to the president on executive actions relating to copyright and AI. To prevent unlawful collusion, protect consumers and workers, and ensure fair competition, the EO encourages the Federal Trade Commission to consider utilizing its existing authorities, including rulemaking, under the Federal Trade Commission Act. The National Science Foundation will initiate a pilot of the National AI Research Resource, a tool enabling AI researchers and students to access vital AI resources and data for fostering public-private collaboration.

Federal Government Use and Procurement of AI

The director of the Office of Management and Budget will convene and chair an interagency council responsible for coordinating the development and utilization of AI in agenciesÔÇÖ programs and operations. Heads of agencies are required to enhance existing training and familiarization programs to expedite the acquisition of specified AI products and services through more efficient contracting mechanisms.

International Collaboration

The State Department, in conjunction with the Commerce Department, will lead efforts to establish robust international frameworks for harnessing the benefits of AI while effectively managing its risks and ensuring safety.

Cooley will actively monitor the implementation of this executive order. To stay informed about updates on the EO and other AI-related developments, sign up to receive Cooley thought leadership content or follow us on LinkedIn.

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