On October 30, President Biden issued a sweeping Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence seeking to seize the promise and manage risks of the artificial intelligence (AI) technology, establish new standards for AI safety and security, promote privacy, advance equity and civil rights, stand up for consumers and workers, promote innovation and competition, and more.

The Biden-Harris Administration has made it clear that AI policy is high on its list of priorities. The President emphasizes that his Administration is committed to ensuring the United States plays a leading role in AI innovation, with a strong focus on safety, trust, and risk mitigation. Read on to see the highlights of the Executive Order immediately relevant to most of our clients.

Some of the priorities mentioned in the Executive Order are:

• Development of robust, reliable, repeatable, and standardized evaluations of AI systems, as well as policies, institutions, and other mechanisms to test, understand, and mitigate risks from AI systems before they are deployed. The National Institute of Standards and Technology (NIST) is tasked with setting rigorous standards for extensive red-team testing to ensure AI models’ safety before public release.
• Democratization of AI technology to set small developers and AI-powered businesses up for successful competition in the marketplace. President mentions stopping the unlawful collusion and addressing risks from dominant AI companies’ use of key assets.  In particular, the President encourages the Federal Trade Commission (FTC) to consider exercising its existing authorities, including its rulemaking authority under the FTC Act, 15 U.S.C. 41 et seq., to ensure fair competition in the AI marketplace and to ensure that consumers and workers are protected from harms that may be enabled by the use of AI.
• Development of effective labeling / watermarking of AI-generated content and official content authentication to combat fraud and ensure public trust.
• Tackling novel intellectual property (IP) questions and protecting inventors and creators.
• Combatting AI-powered discrimination and bias in areas of high social importance, such as housing, consumer financial markets, employment, and healthcare.

Reporting Obligations of Dual-Use AI Model Cos and Large Computing Clusters

By January 28, 2024:

• the Secretary of Commerce shall require companies developing or intending to develop potential dual-use foundation models^[1] to provide the Federal Government, on an ongoing basis, with information, reports, or records regarding their plans, cybersecurity protections, ownership and possession of model weights, and results of testing based on guidelines developed by the NIST;
• entities that acquire, develop, or possess a potential large-scale computing cluster will be required to report any such acquisition, development, or possession, including the existence and location of these clusters and the amount of total computing power available in each cluster.

Possible Proposed Regulation of the AI Sector

The Executive Order directs federal agencies to propose regulation of the AI sector:

• The Secretary of Commerce is directed to propose regulation requiring U.S. IaaS providers to submit a report when a foreign person transacts with them to train a large AI model with potential capabilities that could be used in malicious cyber-enabled activity. U.S. IaaS providers shall be required to procure from their foreign resellers reports of training runs and submit them to the Secretary of Commerce.
• Before April 28, 2024, Secretary of Commerce is directed to propose regulations that require United States IaaS Providers to ensure that foreign resellers of United States IaaS Products verify the identity of any foreign person that obtains an IaaS account from the foreign reseller.
• Independent regulatory agencies are encouraged to consider rulemaking to protect consumers from fraud, discrimination, and threats to privacy and to address other risks that may arise from the use of AI. The Executive Order mentions that regulated entities may need to be able to explain their use of AI models and be responsible for conducting due diligence on and monitoring any third-party AI services they use.

AI and Telecom

The President encourages the Federal Communications Commission to consider actions related to how AI will affect communications networks and consumers, including by:

• examining the potential for AI to improve spectrum management, increase the efficiency of non-Federal spectrum usage, and expand opportunities for the sharing of non-Federal spectrum;
• coordinating with the National Telecommunications and Information Administration to create opportunities for sharing spectrum between Federal and non-Federal spectrum operations;
• providing support for efforts to improve network security, resiliency, and interoperability using next-generation technologies that incorporate AI, including self-healing networks, 6G, and Open RAN; and
• encouraging, including through rulemaking, efforts to combat unwanted robocalls and robotexts that are facilitated or exacerbated by AI and to deploy AI technologies that better serve consumers by blocking unwanted robocalls and robotexts.

AI and Privacy

To better protect Americans’ privacy, including from the risks posed by AI, the President calls on Congress to pass bipartisan data privacy legislation to protect all Americans, especially kids, and directs the following actions:

• Protect Americans’ privacy by prioritizing federal support for accelerating the development and use of privacy-preserving techniques (PETs) — including ones that use cutting-edge AI and that let AI systems be trained while preserving the privacy of the training data.  
• Strengthen privacy-preserving research and technologies, such as cryptographic tools that preserve individuals’ privacy, by funding a Research Coordination Network to advance rapid breakthroughs and development. The National Science Foundation will also work with this network to promote the adoption of leading-edge privacy-preserving technologies by federal agencies.
• Evaluate how agencies collect and use commercially available information—including information they procure from data brokers—and strengthen privacy guidance for federal agencies to account for AI risks. This work will focus in particular on commercially available information containing personally identifiable data.
• Develop guidelines for federal agencies to evaluate the effectiveness of privacy-preserving techniques, including those used in AI systems. These guidelines will advance agency efforts to protect Americans’ data.

Advancing Equity and Civil Rights

Irresponsible uses of AI can lead to and deepen discrimination, bias, and other abuses in justice, healthcare, and housing. The Biden-Harris Administration has already taken action by publishing the Blueprint for an AI Bill of Rights and issuing an Executive Order directing agencies to combat algorithmic discrimination, while enforcing existing authorities to protect people’s rights and safety. To ensure that AI advances equity and civil rights, the President directs the following additional actions:

• Provide clear guidance to landlords, Federal benefits programs, and federal contractors to keep AI algorithms from being used to exacerbate discrimination.
• Address algorithmic discrimination through training, technical assistance, and coordination between the Department of Justice and Federal civil rights offices on best practices for investigating and prosecuting civil rights violations related to AI.

AI Innovation

The Executive Order ensures the U.S. maintains leadership in AI development through the following actions:

• Catalyze AI research across the United States through a pilot of the National AI Research Resource—a tool that will provide AI researchers and students access to key AI resources and data—and expanded grants for AI research in vital areas like healthcare and climate change.
• Promote a fair, open, and competitive AI ecosystem by providing small developers and entrepreneurs access to technical assistance and resources, helping small businesses commercialize AI breakthroughs, and encouraging the FTC to exercise its authorities.

The measures President Biden issued yesterday represent crucial advancements in the United States’ strategy for ensuring safe, secure, and reliable AI. While more steps will be necessary, the Administration remains committed to collaborating with Congress in a bipartisan manner to pass legislation that will enable America to lead in responsible innovation. Sign up for our email list to stay abreast of the latest  developments in AI law!

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Jonathan S. Marashlian – Tel: 703-714-1313 / E-mail: jsm@CommLawGroup.com
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[1] Model that is trained on broad data; generally uses self-supervision; contains at least tens of billions of parameters; is applicable across a wide range of contexts; and that exhibits, or could be easily modified to exhibit, high levels of performance at tasks that pose a serious risk to security, national economic security, national public health or safety, or any combination of those matters. Sec. 3(k) of the Executive Order