President Biden's Executive Order on AI - Legal Practice Snapshots

On October 30, 2023, President Biden published a landmark Executive Order regarding the use of Artificial Intelligence (“AI”) with an accompanying Fact Sheet, touching on the opportunities these systems present along with their potential risks. This Executive Order builds on prior AI-related publications by President Biden, including the Blueprint for an AI Bill of Rights released earlier this year.

This AI Executive Order directs actions for the following categories:

• New Standards for AI Safety and Security
• Protecting Americans’ Privacy
• Advancing Equity and Civil Rights
• Standing Up for Consumers, Patients, and Students
• Supporting Workers
• Promoting Innovation and Competition
• Advancing American Leadership Abroad
• Ensuring Responsible and Effective Government Use of AI

In remarks on Monday, President Biden said this broad Executive Order “represents bold action” and that “[t]o realize the promise of AI and avoid the risks, we need to govern this technology...” Indeed, the scope of the AI Executive Order is wide-reaching and touches on action items that may impact various legal practice areas, including data privacy, ediscovery (specifically, validation of AI/ML systems), antitrust, government contracting, government investigations, life sciences, and civil rights.  K&S has established a cross-functional, cross-sector Tech and AI Working Group to evaluate the needs of our clients and advise on emerging complex legal issues within this industry.

The following includes verbatim highlights of the AI Executive Order actions relevant as outlined in the published Fact Sheet to a few select related practice areas. 

Data Privacy and Security

• New Standards for AI Safety and Security: Establish advanced governance programs for AI tools to identify vulnerabilities in critical components; including metrics and measures to evaluate for bias and equity.
• New Standards for AI Safety and Security: Develop incident response plans for handling AI-related security events and privacy issues.
• Protecting Americans’ Privacy: Incorporate technologies to mitigate privacy risks in AI systems and develop red teaming protocols consistent with the Department of Commerce guidelines.
• Protecting Americans’ Privacy: Prioritize federal support for accelerating the development and use of privacy-preserving techniques, such as secure multiparty computation, homomorphic encryption, and differential privacy.
• Protecting Americans’ Privacy: Evaluate how agencies collect and use commercially available information - including information they procure from data brokers - and strengthen privacy guidance for federal agencies to account for AI risks.
• New Standards for AI Safety and Security: Advising on adherence to National Institute of Standards and Technology (NIST) guidelines for safe, secure, and trustworthy AI.

E-Discovery

• New Standards for AI Safety and Security: Develop standards, tools, and tests to help ensure that AI systems are safe, secure, and trustworthy.
• New Standards for AI Safety and Security: Protect Americans from AI-enabled fraud and deception by establishing standards and best practices for detecting AI-generated content and authenticating official content.
• Advancing American Leadership Abroad: Accelerate development and implementation of vital AI standards.
• Advancing American Leadership Abroad: Promote the safe, responsible, and rights-affirming development and deployment of AI abroad to solve global challenges.

Antitrust

• Promoting Innovation and Competition: Promote a fair, open, and competitive AI ecosystem by providing small developers and entrepreneurs access to technical assistance and resources, helping small businesses commercialize AI breakthroughs, and encouraging the Federal Trade Commission to exercise its authorities.
• Promoting Innovation and Competition: Promote a fair, open, and competitive AI ecosystem encouraging the Federal Trade Commission to exercise its authorities.

Government Contracts

• Ensuring Responsible and Effective Government Use of AI: Issue guidance for agencies’ use of AI, including clear standards.
• Ensuring Responsible and Effective Government Use of AI: Help agencies acquire specified AI products and services faster, cheaply, and more effectively through more rapid and efficient contracting.
• Ensuring Responsible and Effective Government Use of AI: Accelerate the rapid hiring of AI professionals as part of a government-wide AI talent surge.

Government Investigations

• New Standards for AI Safety and Security: Require that developers of the most powerful AI systems share their safety test results and other critical information with the U.S. government.
• New Standards for AI Safety and Security: Develop standards, tools, and tests to help ensure that AI systems are safe, secure, and trustworthy.
• New Standards for AI Safety and Security: Protect Americans from AI-enabled fraud and deception by establishing standards and best practices for detecting AI-generated content and authenticating official content.

Life Sciences

• New Standards for AI Safety and Security: Protect against the risks of using AI to engineer dangerous biological materials by developing strong new standards for biological synthesis screening.
• Standing Up for Consumers, Patients, and Students: Advance the responsible use of AI in healthcare and the development of affordable and life-saving drugs.
• Promoting Innovation and Competition: Catalyze AI research across the United States through a pilot of the National AI Research Resource—a tool that will provide AI researchers and students access to key AI resources and data—and expanded grants for AI research in vital areas like healthcare.

Civil Rights/Pro-Bono

• Advancing Equity and Civil Rights: Address algorithmic discrimination through training, technical assistance.
• Advancing Equity and Civil Rights: Ensure fairness throughout the criminal justice system by developing best practices on the use of AI.

This Executive Order reflects the ongoing executive branch interest in governing AI.  We should expect ongoing government efforts to collaborate and regulate across industries related to AI-creation and usage. 

Please note, as we monitor these developments, additional in-depth client alerts for the relevant practice areas will be issued.