Executive Order – Artificial Intelligence

On October 30, 2023, President Joe Biden issued an Executive Order (the “Order”) on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (“AI”) which sets an agenda and new standards for safety and security as it relates to the growing development and increasing use of AI in the United States. The Order sets forth a new set of disclosure requirements and obligations for businesses designing, developing, and/or implementing AI systems, which are broadly defined to encompass any data system, software, hardware, application, tool or utility that operates in whole or in part through the use of AI. The Order further directs AI developers to take greater measures in protecting bad actors from abusing AI systems and introduces new rigorous testing standards for AI, such as red teaming (a process of testing cybersecurity efficiency), to ensure AI safety before being released to the public. The Order puts forth a wide range of federal regulatory principles and priorities, directs myriad federal agencies to promulgate standards and technical guidelines, and invokes statutory authority, known as the “Defense Production Act,” otherwise traditionally known as the primary source of presidential authorities to commandeer or regulate private industries to support the national defense.

Purpose of the Order: The purpose of the Order is to foster responsible AI use through new government initiatives. AI has the potential to help solve urgent challenges while making the world more prosperous, productive, innovative, and secure. Nonetheless, irresponsible use of AI may exacerbate societal harms such as fraud, discrimination, bias, and disinformation; displace and disempower workers; stifle competition; and pose risks to national security. The Order is a step in the direction toward advancing and harnessing AI for good and mitigating the risks it poses to society and national security.

Impacted Parties: The initiatives set forth in the Order will directly impact AI system developers, AI system designers, agencies that intend to use AI products and services, among others.

Upcoming Government Initiatives Mentioned in the Order:

  • NIST Testing and New Standards: The National Institute of Standards and Technology (“NIST”) will publish a new standard of testing known as “red teaming” to ensure the safety of the AI before public release. NIST will also be tasked with developing standards for critical infrastructure sectors and establishing an AI Safety and Security Board. NIST is also responsible for publishing a companion to its Secure Software Development Framework to incorporate secure development practices for generative AI.
  • Watermarking: The Order calls for the Department of Commerce (“DOC”) to develop watermarking standards for AI-generated content to make it easy for Americans to know that the communications they receive from the federal government are authentic.
  • Protection Against AI used as a Weapon: The Departments of Energy and Homeland Security will address AI systems’ threats to critical infrastructure, as well as chemical, biological, radiological, and nuclear risks.
  • Immigration: The Order aims to decrease visa requirements for overseas talent seeking to work in American AI companies, promoting the attraction of global AI talent, and positioning the United States as a leader in AI development.
  • Health: The Department of Health and Human Services and other federal agencies will establish a set of safety standards for AI use in healthcare.
  • Labor: The Department of Labor and the National Economic Council will conduct studies to assess AI’s impact on labor-markets and identify options to support workers facing labor disruptions.
  • Equity and Civil Rights: Federal agencies will provide guidance to address algorithmic discrimination that targets areas such as housing, government contracts, and federal benefits programs.
  • Cybersecurity and Privacy: A program will be established to develop AI tools that address cybersecurity vulnerabilities in critical software, enhancing the security of software and networks. The Order further emphasizes the need for federal privacy legislation and federal support for accelerating the development of privacy-preservation by strengthening research and cryptographic tools.
  • Innovation and Competition: The Order addresses the potential for unfair competition and issues in innovation and suggests providing small developers and entrepreneurs with access to technical assistance and resources to promote a fair, open, and competitive AI ecosystem.

Next Steps: Clients of Meyers, Roman, Friedberg & Lewis may be impacted by the Order and its subsequent initiatives. To prepare, we recommend that our clients review and familiarize themselves with the Order and the upcoming initiatives and standards for AI safety and reach out to David V. Croft at dcroft@meyersroman.com with any questions.