[co-author: Stephanie Kozol]*

In a recent speech at Oxford University, U.S. Deputy Attorney General (AG) Lisa Monaco announced that the U.S. Department of Justice (DOJ) will now seek stiffer penalties for crimes involving, and aided by, artificial intelligence (AI).

During her remarks, Monaco explained that, going forward, DOJ prosecutors will have the flexibility to seek harsher sentences for offenses “made significantly more dangerous by the misuse of AI.” Furthermore, DOJ will pursue reforms, where existing sentencing enhancements do not adequately address the harms caused by the misuse of AI. Monaco compared these stiffer penalties to those implemented in criminal offenses involving firearms — reasoning that, “[l]ike a firearm, AI can also enhance the danger of a crime.” Recognizing that AI can also be used for nonnefarious purposes, Monaco explained that DOJ is working with other federal agencies to create guidance governing their own use of AI, and to establish testing to instill confidence that their implementation of the technology is fair, accurate, and safe.

In order to effectuate this goal, DOJ has launched the Justice AI initiative. The initiative will bring together individuals from varied backgrounds, social groups, and intellectual sectors to provide diverse perspectives on AI, and assist DOJ with understanding both the potential positive and negative implications of AI going forward. The initiative’s findings will be used to prepare a report to President Biden at the end of the year on AI’s use in the criminal justice system.

Takeaway

With DOJ enhancing its focus on AI, companies that provide AI services directly to consumers should carefully review their service agreements to ensure that use of AI services in support of criminal activity is expressly prohibited. Companies should also review their processes and procedures for identifying suspected malicious use of AI services and document those efforts in the event of regulatory inquiry. For companies that do not provide AI services directly to consumers, but only use AI for internal business purposes, it is important to ensure that the algorithm does not inadvertently violate legislative or regulatory guidance, especially when applicable legislation carries potential criminal penalties. By developing robust procedures, policies, and guidance regarding the use of AI, companies can position themselves to effectively identify and address potential wrongdoing conducted with the use of AI. And above all, companies must monitor developments in the regulation of AI to ensure that business practices do not run afoul of rapid regulatory developments.

*Senior Government Relations Manager