By: Elise Hall
In October 2023, the Biden Administration issued the Executive Order on Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, establishing a government-wide effort to guide the use of AI throughout federal agencies, regulate the AI industry, and cooperate on AI governance with international partners.[1] The Executive Order outlines requirements for standardized evaluation of AI systems, risk-mitigation efforts, and responsible development and deployment of AI systems.[2] While focusing heavily on safeguards, the Executive Order also aims to promote innovation and competition in the AI industry and advance American leadership in the AI sector abroad.[3] In support of these goals, there is an increased emphasis on job training, skill-building, and job security for American workers who may interact with AI systems.[4] The Executive Order underscores the importance of foundational civil liberties and speaks to the Administration’s intention to keep privacy principles at the foundation of AI usage in the federal government.
In early 2024, the National Institute of Standards and Technology (“NIST”) issued a request for information (“RFI”) soliciting commentary from the public about NIST’s assignments under sections 4.1 (Guidelines, Standards, and Best Practices for AI Safety and Security), 4.5 (Reducing Risks Posed by Synthetic Content), and 11 (Strengthening American Leadership Abroad) of the Executive Order.[5] Although the Executive Order applies primarily to federal government agencies with some implications for private entities that do business or contract with the federal government, over 200 individuals and entities commented in response to the RFI. [6] Among the commenters were several tech giants, including Google, Intel, Kaiser, Microsoft, OpenAI, and Salesforce, each of whom has significant business interests in how the federal government chooses to regulate artificial intelligence.[7]
The Executive Order left a trail of legal questions about the obligations businesses and government agencies have regarding the use of artificial intelligence. The Executive Order provided a guided approach to using AI but tasked administrative agencies with developing specific policies. The Executive Order left over 50 federal entities with the arduous task of developing AI policy in a matter of months.[8] For example, the U.S. Patent & Trademark Office (“USPTO”) had 120 days to coordinate with the Copyright Office and provide initial guidance to examiners and applicants on how to use AI in the inventive process.[9] Following that initial task, the USPTO then had a mere 150 days to update its guidance with further details surrounding the intersection of AI and intellectual property.[10] Such rapid timelines for producing guidance leave little time to connect with industry leaders, consult experts, or iterate to ensure that the resulting policies are both informed and not overly burdensome on businesses. The Executive Order leaves businesses with the challenge of using and developing AI systems without a sense of what policies they may be required to adhere to going forward.[11] The Executive Order also further complicates ongoing legal debates surrounding intellectual property and AI. Major tech companies like Meta, OpenAI, and Stability AI are engaged in ongoing lawsuits about the use of protected works to train AI models—the policies formed by the USPTO in response to the Executive Order will shape the outcome of these cases.[12]
Entities intending to use or develop artificial intelligence will need to rapidly adapt to increased compliance obligations and anticipate how AI governance may impact ongoing legal challenges.
[1] Exec. Order No. 14,110, 88 Fed. Reg. 75191 (Nov. 1, 2023).
[2] Id.
[3] See Fact Sheet: President Biden Issues Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence, The White House (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/ (providing an overview of the new standards for AI safety and security).
[4] Id.
[5] Request for Information (RFI) Related to NIST’s Assignments Under Sections 4.1, 4.5 and 11 of the Executive Order Concerning Artificial Intelligence (Sections 4.1, 4.5, and 11), 88 Fed. Reg. 88,368 (Dec. 21, 2023).
[6] Steven Millendorf et al., Highlights From the Biden Administration Executive Order on AI, Foley (Nov. 16, 2023), https://www.foley.com/insights/publications/2023/11/high
lights-biden-administration-executive-order-ai/.
[7] Comments Received for RFI on NIST’s Assignments under Executive Order 14110 on Safe, Secure, and Trustworthy Development and Use of AI, NIST (Feb. 13, 2024), https://www.nist.gov/artificial-intelligence/executive-order-safe-secure-and-trustworthy-artificial-intelligence/comments.
[8] Id.
[9] John Gladstone Mills III et al., Exploiting copyrights—Recourse against infringement—Conduct of copyright infringement litigation—Standing to sue, 2 Pat. L. Fundamentals 6:81 (2024).
[10] Id.
[11] David S. Rubenstein, AI & MQD, 49 Admin. & Reg. L. News 6, 7 (Fall 2023).
[12] Annelise Gilbert, AI Executive Order Seeks Patent, Copyright Office Guidance, BL (Oct. 30, 2023), https://news.bloomberglaw.com/ip-law/ai-executive-order-requests-patent-copyright-office-guidance.
