Biden Administration Releases Sweeping Executive Order Regarding Artificial Intelligence

The Biden administration issued an “Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence” on Oct. 30.[1] The order, which comes on the heels of Vice President Kamala Harris’ trip to London for Prime Minister Rishi Sunak’s AI summit, is the first of its kind in the U.S. and aims to address growing concerns about the future of AI and its impact on a variety of industries. While the U.S. has been a global force in developing AI technologies, it has been slow to draft legislation concerning the emerging industry, trailing the European Union, as well as China and Israel.[2] The order is broken down into eight parts — each focusing on a different effect of AI technology.

Life sciences, intellectual property and cybersecurity are just some of the impacted industries. However, the national security, government contracts, real estate, environmental regulation, ESG, and wage and hour industries will likely face new challenges as a result of the order as well. Brown Rudnick is committed to monitoring this evolving technological landscape and exploring its impact on our clients in these industries.

Life Sciences

Companies engaging in life science projects directed toward developing advancements in biological synthesis screening with the aid of AI technology should heed the order’s promise to create new standards in the field. The standards are geared toward prohibiting the creation of nuclear and biological weapons, otherwise known as “germ warfare.” The Biden administration has invoked the Defense Production Act (DPA) to require that “companies developing any foundation model that poses a serious risk to national, security, national economic security, or national public health and safety” disclose all results from their red-team safety test. Biological and nuclear AI systems will also be analyzed by the departments of Homeland Security and Energy to ensure that they pose no harm to critical infrastructure. Companies and institutions receiving federal funding will be required to abide by these new standards to continue receiving grants. The order also calls on Congress to pass bipartisan legislation supporting additional AI security and consumer protection standards directed at companies producing these types of technologies. Various federal agencies are also encouraged to provide both companies and their consumers with general guidance for navigating this relatively new field.

Companies in the health care sector should also be aware that the Biden administration has directed that the Department of Health and Human Services establish a safety program to receive reports of harms or unsafe health care practices. 

Intellectual Property

The order may also have an impact on the IP sphere, both in terms of protecting human intellect and ensuring proper authentication of AI-generated technology. The Biden administration has tasked the Department of Commerce with outlining a set of recommendations aimed at helping technology users determine whether the content they are consuming is AI or human generated. While these standards will serve as mere guidance, it is likely that there will be a trend in the private sector towards watermarking and authenticating AI content, especially as the federal government moves toward authenticating its own content.

In keeping with the administration’s goal to promote competition in the field, this order will also likely raise new issues surrounding patentability. At his Oct. 30 press conference, President Joe Biden stated that “we are going to see more technological change in the next five years than we have seen in the last 50.” Government assistance in the form of technological aid and resources will be provided to small companies looking to commercialize their AI innovations, expanding innovation in the field and expanding patent applications. The National AI Research Resource (NAIRR), formed in coordination with the National Science Foundation and the White House Office of Science and Technology Policy, additionally plans to expand grants for AI research with a particular focus on the climate and healthcare sectors. 

Other Impacted Industries

Aside from these industries, the order also calls for the establishment of a new cybersecurity program aimed at creating more secure networks and preserving user privacy on social networks. This program will identify and work toward combatting various AI flaws, like the spread of disinformation. And, while the White House has called on the Federal Trade Commission (FTC) to release additional regulations about privacy, the FTC is not bound to the order and the agency releases its regulations independent of the executive branch’s actions. FTC Chair Lina Khan, however, has previously signified that she plans to take a hard-hitting approach to monitoring AI systems in various tech industries.[3]

Employers should also be aware that President Biden has requested that a report be released on AI’s impacts on the U.S. labor market to analyze its role in labor disruptions, undercompensation issues and the evaluation of job applications. The Department of Labor and the National Economic Council will then review the report and study additional data to determine “best practices” for employers in an effort to “mitigate the harms and maximize the benefits of AI for workers.”[4]

In addition to more tech-oriented directives, the order plans to ensure equity in AI technology by providing government contractors and landlords using AI tools in their practices with guidance on how to avoid algorithmic discrimination.

[1] The directions outlined in the order are to be implemented in the next 90 to 100 days.

[2] See David E. Sanger & Cecilia Kang, Biden to Issue First Regulations on Artificial Intelligence Systems, N.Y. Times (Oct. 30, 2023, 9:52 A.M.), https://www.nytimes.com/2023/10/30/us/politics/biden-artificial-intelligence.html.

[3] See Cecilia Kang and Cade Metz, F.T.C. Opens Investigation Into ChatGPT Maker Over Technology’s Potential Harms, N.Y. Times (July 13, 2023), https://www.nytimes.com/2023/07/13/technology/chatgpt-investigation-ftc-openai.html; Lina M. Khan, Lina Khan: We Must Regulate A.I. Here’s How., N.Y. Times (May 3, 2023), https://www.nytimes.com/2023/05/03/opinion/ai-lina-khan-ftc-technology.html.

[4] See Fact Sheet: President Biden Issues Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence, The White House Briefing Room (Oct. 30, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/30/fact-sheet-president-biden-issues-executive-order-on-safe-secure-and-trustworthy-artificial-intelligence/.