On October 30, 2023, President Biden issued an “Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence” (“EO”) that issues a multitude of directives across a wide swath of federal agencies and departments, as well as AI developers, regarding “seizing the promise and managing the risks” of artificial intelligence (“AI”). It directs the development of numerous standards and safeguards as well as directives to secure benefits and opportunities and promote a competitive environment in AI. The EO mentioned that while it advances the agenda set forth in the EO, it will continue consulting with other countries and working with allies around the world, as it has with respect to AI governance frameworks over the last several months.

Summarizing the directives into eight main categories, the Executive Order includes the following directives summarized below. For more information about what regulation to expect going forward or how private industry might be impacted, please reach out to our Data Privacy and Security Team:

1. New Standards for AI Safety and Security

• Developers of “Powerful AI Systems” to Share Safety Test Results and Other Critical Information with U.S. Government.  In accordance with the Defense Production Act, companies developing any foundation model that poses “a serious risk” to national security, national economic security, or national public health and safety must notify the federal government when training the model, and must share the results of all red-team safety tests. 

• NIST to Develop Testing/Safety Standards. NIST must set rigorous standards for extensive red-team testing to ensure safety before public release.  [Note: NIST has already developed and published several substantive contributions, including risk management frameworks and various focused programs, regarding artificial intelligence.

• DHS to Apply NIST Standards. The Department of Homeland Security (“DHS”) will apply the above NIST standards to critical infrastructure sectors and establish the “AI Safety and Security Board”.

• DOE and DHS to Address Critical Infrastructure Threats. The Department of Energy (“DOE”) and DHS must address AI systems’ threats to critical infrastructure, as well as chemical, biological, radiological, nuclear, and cybersecurity risks.    

• Life-Science Funding Agencies to Develop Screening Standards. Agencies funding life science projects will develop strong new standards for biological synthesis screening, to protect against the risks of using AI to engineer dangerous biological materials, and will establish these as a condition of federal funding.

• DOC to Develop Consumer Protection Guidance to Label AI-Generated Content.  The Department of Commerce (“DOC”) must develop guidance for content authentication and watermarking to clearly label AI-generated content.
• Establish a Cybersecurity Program to Develop AI Tools to Secure Software, Networks.  Building on the administration’s “AI Cyber Challenge”, the executive order directs the establishment of an advanced cybersecurity program to develop AI tools to find and fix vulnerabilities in critical software and make the software and networks more secure.
• National Security Memorandum to Ensure Safe, Ethical Use of AI in Military Intelligence.  The executive order directs the National Security Council (“NSC”) and the White House Chief of Staff to develop a national security memorandum that will ensure that the US military and intelligence community uses AI safely, ethically, and effectively in their missions, and will direct actions to counter adversaries’ military use of AI.

2. Protecting American Privacy

• Congress to Pass Bipartisan Data Privacy Legislation.  The EO calls on Congress to pass bipartisan data privacy legislation “to protect all Americans, especially kids.
• Prioritize Federal Support for Privacy-Preserving Techniques.  The EO prioritizes federal support for accelerating the development and use of privacy-preserving techniques, including those that use cutting-edge Ai and that let AI systems be trained while preserving the privacy of the training data.
• Research Coordination to Strengthen Privacy-Preserving Research and Technologies.  The EO calls for funding of a “Research Coordination Network” to advance rapid breakthroughs and development of privacy-preserving research and technologies, such as cryptographic tools that preserve individual privacy.  The National Science Foundation must work with this network to promote the adoption of leading-edge privacy-preserving technologies by federal agencies.
• Evaluate Agency Collection and Use of Information.  The EO calls for evaluating how agencies collect and use commercially available information – including information procured from data brokers – and to strengthen privacy guidance for federal agencies to account for AI risks.  This will focus particularly on commercially available information containing personally identifiable data.
• Develop Guidelines for Agencies to Evaluate Privacy Techniques.  The EO calls for development of guidelines to help federal agencies to evaluate the effectiveness of privacy-preserving techniques, including those used in AI systems, to “advance agency efforts to protect American’s data.

3. Advancing Equity and Civil Rights

• Builds on Previous Issuances on AI and Discrimination.  The EO acknowledged that irresponsible uses of AI can lead to and deepen discrimination, bias and other abuses. The EO cited its previously issued “Blueprint for an AI Bill of Rights” as well as its February 2023 Executive Order calling on agencies, among other things, to prevent and remedy discrimination, including but protecting the public from algorithmic discrimination.  In this EO, the President directs the following:
• Providing Clear Guidance to Prevent AI Algorithms from Exacerbating Discrimination.  The EO directs the development of such guidance to landlords, Federal benefits programs, and federal contractors.
• DOJ and Civil Rights Training on Algorithmic Discrimination.  The EO calls for training technical assistance and coordination between the Department of Justice (“DOJ”) and federal civil rights offices on best practices for investigating and prosecuting civil rights violations related to AI.
• Best Practices for the Criminal Justice System.  The EO calls for development of best practices on the use of AI in sentencing, parole and probation, pretrial release and detentions, risk assessments, surveillance, crime forecasting and predictive policing, and forensic analysis.

4. Standing Up for Consumers, Patients, and Students

• Responsible Use of AI in Healthcare and Drug Development.  The EO calls for the Department of Health and Human Services (“DHHS”) to establish a safety program to receive reports of – and act to remedy – harms or unsafe healthcare practices involving AI.
• Deployment of AI-Enabled Educational Tools. The EO calls to “shape AI’s potential to transform education” by creating resources to support educators deploying AI-enabled educational tools, such as personalized tutoring in schools.

5. Supporting Workers

• Address Impact of AI on the Workforce. The EO calls for development of principles and best practices to mitigate the harms and maximize the benefits of AI for workers by addressing job displacements, labor standards, workplace equity, health, and safety, and data collection.  These principles should provide guidance to prevent employers from undercompensating workers, evaluating job applications unfairly, or impinging on workers’ ability to organize.
• Report on AI labor market impact and options for Strengthening Federal support.  The EO calls for a report to study and identify the impacts of AI on labor markets, and options for strengthening Federal support for workers facing labor disruptions, including from AI.

6. Promoting Innovation and Competition

• National AI Research Resource (“NAIRR”) Pilot Program.  The EO calls for the development of the NAIRR as a tool to 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”.
• Help Small Businesses, Entrepreneurs Access AI Resources.  The EO calls for providing small developers and entrepreneurs access to technical assistance and resources, to help small businesses commercialize AI breakthroughs, and it encourages the Federal Trade Commission (“FTC”) to “exercise it authorities” for a “fair, open, and competitive AI ecosystem”.
• Attract AI Talent to the United States.  The EO calls to use existing authorities to modernize and streamline visa criteria, interviews and reviews to “expand the ability of highly skilled immigrants and non-immigrants with expertise in critical areas to study, stay, and work in the United States.”

7. Advancing American Leadership Abroad

• Expand International Collaboration on AI.  Noting Vice-President Harris’s upcoming speech at the UK Summit on AI Safety, the EO calls for the State Department, in collaboration with the DOC, to lead an effort to establish robust international frameworks for harnessing AI’s benefits, managing its risks, and ensuring safety, and for expanding “bilateral, multilateral and multi-stakeholder engagements” to collaborate on AI.
• Acceleration of International AI Standards.  The EO calls to accelerate the development and implementation of vital AI standards with international partners and standards organizations.
• Promote Appropriate Development and Deployment of AI to Solve Global Challenges. The EO calls for promoting the “safe, responsible, and rights-affirming” development and deployment of AI abroad to solve global challenges such as advancing sustainable development and mitigating dangers to critical infrastructure.

8. Ensuring Responsible and Effective Government Use of AI

• Issue Guidance for Federal Agency Use of AI.  This includes clear standards to protect rights and safety, improve AI procurement, and strengthen AI deployment.
• Streamline Agency AI Contract Procurement.  The EO calls for helping agencies acquire specified AI products and services faster, more cheaply and more effectively through more rapid and efficient contracting.
• Accelerate Federal Hiring of AI Professionals.  The EO calls for the acceleration of rapid hiring of AI professionals as part of a government-wide AI talent surge led by the Office of Personnel Management (“OPM”), the U.S. Digital Service, U.S. Digital Corps, and the Presidential Innovation Fellowship.  Agencies will also provide AI training for employees in relevant fields at all levels.

More information on the Administration’s efforts with respect to AI may be found at www.ai.gov.