U.S. AI policy heats up with new executive order and legislative activity

On October 30, 2023, President Joe Biden issued his Executive Order (EO) on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.  The comprehensive EO seeks to ensure America’s leadership in harnessing the potential and benefits of artificial intelligence (AI) and manage the potential risks that could come with the powerful technology.  The order directs various federal agencies to set new standards for AI safety and security, safeguard Americans’ privacy, advance equity and civil rights, support consumers and workers, promote innovation and competition, and bolster American leadership on the global stage.  The new EO comes in the wake of an uptick in Congressional interest in AI policy and legislation, setting the stage for a dynamic U.S. government response to AI innovation in the coming year.

The EO directs a wide array of stakeholders to take actions to support the responsible development and deployment of AI in a variety of contexts. Notably, the EO directs:

• Developers of foundation AI models that pose a serious risk to national security, national economic security, or national public health and safety to (1) notify the federal government when training the model and (2) share the results of all red-team safety tests
• The National Institute of Standards and Technology (NIST) to set rigorous standards for extensive red-team testing to ensure safety before public release of models, which will be applied by various federal agencies
• The Department of Commerce to develop guidance for content authentication and watermarking to clearly label AI-generated content
• Various federal agencies to consider how to address privacy concerns regarding the development and deployment of AI models
• The Office of Management and Budget (OMB) to create an interagency council to coordinate the development and use of AI in agencies’ programs and operations
• Agencies that fund life-science projects to develop strong new standards for biological synthesis screening
• The National Security Council and White House Chief of Staff to develop a National Security Memorandum that directs further actions on AI and security
• Policymakers to prioritize federal support for accelerating the development and use of privacy-preserving techniques
• The State Department and Department of Homeland Security to prioritize processing of visa applications for those traveling to the United States to study or conduct research on AI
• The National Science Foundation to launch a pilot program implementing the National AI Research Resource
• The U.S. Patent and Trademark Office to issue guidance on the patenting of AI tools
• The U.S. Copyright Office to issue recommendations on potential executive actions on copyright and AI
• The Department of Health and Human Services (HHS) to prioritize grantmaking and awards on the responsible development and use of AI
• The Federal Trade Commission to consider competition risks associated with the concentration of control of key inputs for AI’s development and use
• The Labor Department to issue guidance on minimizing the risk of bias arising from the use of AI in the workplace
• The Department of Justice to consider the application of existing civil rights laws to discrimination related to AI and to issue a report on the use of AI in the criminal justice system
• The Department of Housing and Urban Development to address whether and how AI could be used to discriminate in the housing context

This EO builds upon previous executive actions on artificial intelligence (AI), including EO 13960, Promoting the Use of Trustworthy Artificial Intelligence in the Federal Government (Dec. 2020) and EO 13985 on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government (Jan. 2021). The White House has also previously developed a Blueprint for an AI Bill of Rights, worked closely NIST on an AI Risk Management Framework, and heralded voluntary commitments from leading AI companies regarding advancement of responsible AI. 

Next Steps

Oftentimes, after an EO is released, we see subsequent rules and regulations issued that tie back to the subject or direction set forth by the EO. In this case, we do expect a wide array of regulations pertaining to AI applications to be released. For example, in the industry area of healthcare, an HHS Office of the National Coordinator (ONC) final rule concerning AI system transparency and reporting was received by the White House OMB for review on Oct. 19 and is expected to be released soon. Additional agency activity to implement the EO will likely be forthcoming, with potential opportunities for stakeholder comment and involvement.

The AI EO and its accompanying fact sheet reference global efforts concerning AI policy and frameworks, citing the U.S.’ prior and ongoing collaborations with numerous countries around AI regulation and standardization.  The EO also notes the upcoming UK AI Safety Summit, due to take place a few days after the release of the President’s AI EO, and Vice President Kamala Harris’ planned attendance at that event.

Federal Legislative Interest in AI

On Capitol Hill, Senate Majority Leader Chuck Schumer (D-NY) has made AI a priority.  He is leading a series of bipartisan policy forums with Senators Martin Heinrich (D-NM), Mike Rounds (R-SD), and Todd Young (R-IN) examining various aspects of AI.  The forums are part of the SAFE AI Framework developed to guide efforts to craft AI-related legislation.  The forums cover AI technology and its implications for the nation, including on competition and innovation, the workforce, and issues related to privacy, bias, and national security. 

Schumer hopes the forums will lead to a comprehensive AI legislative proposal in the coming “months.”  In addition to Schumer’s efforts, virtually every Senate Committee has held hearings examining AI technology and its impacts on various industries and sectors.  Not to be left behind, the House has also held scores of AI-related hearings, with the House Energy & Commerce Committee kicking off a series of AI-focused hearings in early October. In addition to hearings, Members of Congress have introduced dozens of AI bills, many with bipartisan support. 

While it appears unlikely that a divided Congress will coalesce around comprehensive AI legislation ahead of the 2024 election, we expect AI to remain a top issue on Capitol Hill, including as part of upcoming appropriations bills and other “must-pass” bills like the National Defense Authorization Act.  New House Speaker Mike Johnson also co-hosted a dinner with Rep. Ted Lieu (D-CA) on AI in May where Johnson, Lieu and about 60 colleagues heard from OpenAI CEO Sam Altman.

Hogan Lovells will continue to monitor regulatory and legislative developments related to AI, and we encourage businesses to be proactive in engaging with the Biden Administration  and Congress.  Please contact us if you’d like to discuss

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Authored by Cybil Roehrenbeck, Mark Brennan, Katy Milner, Jamie Wickett, Tim Bergreen, Ches Garrison, Ryan Thompson, and Shelley Castle.