White House executive order expands regulation of artificial intelligence
2023 PRINDBRF 0574
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By David McCombs, Esq., Eugene Goryunov, Esq., Dina Blikshteyn, Esq., and Jonathan Bowser, Esq., Haynes Boone
Practitioner Insights Commentaries
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November 8, 2023
(November 8, 2023) - David McCombs, Eugene Goryunov, Dina Blikshteyn and Jonathan Bowser of Haynes Boone analyze a recent Biden administration executive order that seeks to reduce the risks that artificial intelligence poses to consumers, workers, minority groups and national security.
On October 30, 2023, President Biden issued an Executive Order1 that seeks to establish new standards for the development, training, and implementation of artificial intelligence (AI) tools.
Bypassing Congress, the Executive Order creates a national policy on the regulation of AI that focuses primarily on AI developers and the data used in the implementation of AI tools.
The Executive Order indicates that "[t]he rapid speed at which AI capabilities are advancing compels the United States to lead in this moment for the sake of our security, economy, and society." The Executive Order seeks to promote AI safety, security, privacy, civil rights, consumer and worker protection, and is intended to promote innovation, competition and US leadership in AI.
With respect to intellectual property (IP) issues, the Executive Order requires:
•The U.S. Patent and Trademark Office (USPTO) to issue guidance to patent examiners and applicants addressing inventorship and the use of AI, including generative AI, in the inventive process, including illustrative examples in which AI systems play different roles in inventive processes and how, in each example, inventorship issues ought to be analyzed.
•The USPTO to issue additional guidance to patent examiners and applicants to address other considerations at the intersection of AI and IP, which could include, as the USPTO Director deems necessary, updated guidance on patent eligibility to address innovation in AI and critical and emerging technologies.
•The USPTO Director in consultation with the Copyright Office to make recommendations on potential executive actions relating to copyright and AI. The recommendations shall address any copyright and related issues discussed in the United States Copyright Office's study, including the scope of protection for works produced using AI and the treatment of copyrighted works in AI training.
•The Department of Homeland Security (DHS) to develop training, analysis, and evaluation programs in coordination with other federal and state agencies to mitigate AI-related IP risks and adapt IP enforcement strategies to curtail IP theft.
•The President's Council of Advisors on Science and Technology to issue a report on the potential role of AI and its implications for scientific research, including tackling major societal and global challenges. The report shall include a discussion of issues that may hinder the effective use of AI in research and practices needed to ensure that AI is used responsibly for research.
•Federal agencies to promote responsible innovation, competition, and collaboration to allow the United States to lead in AI and unlock the technology's potential to solve some of society's most difficult challenges. This effort requires investments in AI-related education, training, development, research, and capacity, while simultaneously tackling novel IP questions and other problems to protect inventors and creators.
In addition, the Executive Order contains the following provisions:
•Developers of the most powerful AI systems are required to share their safety test results and other critical information with the U.S. government. Any company that develops a foundation model that poses a serious risk to national security, national economic security, or national public health and safety is required to notify the federal government when training the model, and must share the results of all safety tests before those AI tools are made available to the public.
•The National Institute of Standards and Technology (NIST) will develop rigorous standards, tools, and tests to help ensure that AI systems are safe, secure, and trustworthy. The DHS will apply those standards to critical infrastructure sectors and establish the "AI Safety and Security Board." In addition, the Department of Energy (DOE) and DHS will address AI systems' threats to critical infrastructure, as well as chemical, biological, radiological, nuclear, and cybersecurity risks.
•Federal agencies that fund life-science projects will develop biological synthesis screening to protect against the risks of using AI to engineer biological materials.
•The Department of Commerce (DOC) will develop standards and best practices for detecting AI-generated content and authenticating official content to protect Americans from AI-enabled fraud and deception.
•The U.S. government will establish an advanced cybersecurity program to develop AI tools to find and fix vulnerabilities in critical software to harness AI's cyber capabilities to make software and networks more secure.
•The White House and National Security Council will develop a "National Security Memorandum" that directs further actions on AI and security to ensure that the U.S. military and intelligence community use AI safely, ethically, and effectively in their missions, and will direct actions to counter adversaries' military use of AI.
The Executive Order is directed to achieving the following objectives.
Protecting Americans' privacy — recognizing that AI can put Americans' privacy at risk, the Executive Order calls on Congress to pass data privacy legislation that:
•Prioritizes federal support for accelerating the development and use of privacy-preserving techniques.
•Strengthens privacy-preserving research and technologies, such as cryptographic tools that preserve individuals' privacy, by funding a Research Coordination Network to advance rapid breakthroughs and development.
•Evaluates how agencies collect and use commercially available information, and strengthens privacy guidance for federal agencies to account for AI risks.
•Develops guidelines for federal agencies to evaluate the effectiveness of privacy-preserving techniques, including those used in AI systems.
Advancing equity and civil rights — recognizing that irresponsible uses of AI can lead to discrimination, bias, and other abuses, the Executive Order requires authorities to:
•Provide clear guidance to landlords, federal benefits programs, and federal contractors to keep AI algorithms from being used to exacerbate discrimination.
•Address algorithmic discrimination through training, technical assistance, and coordination between the Department of Justice and federal civil rights offices on best practices for investigating and prosecuting civil rights violations related to AI.
•Ensure fairness throughout the criminal justice system by developing best practices on the use of AI in sentencing, parole and probation, pretrial release and detention, risk assessments, surveillance, crime forecasting and predictive policing, and forensic analysis.
Protecting consumers, patients, and students — recognizing that while AI can bring benefits to consumers, AI may increase the risk of injuring, misleading, or otherwise harming Americans.
To guard against these risks, the Executive Order requires:
•Advancement in the responsible use of AI in healthcare and the development of affordable and life-saving drugs.
•Shaping AI's potential to transform education by creating resources to support educators deploying AI-enabled educational tools, such as personalized tutoring in schools.
Protecting workers — recognizing that while AI may provide improved productivity in the workspace, there is a risk of increased workplace surveillance, bias, and job displacement.
To combat against these risks, the Executive Order directs:
•Development of principles and best practices to mitigate the harms and maximize the benefits of AI for workers by addressing job displacement; labor standards; workplace equity, health, and safety; and data collection.
•Reports and studies on AI's potential labor-market impacts, and options for strengthening federal support for workers facing labor disruptions, including from AI.
Promoting innovation and competition — to promote American companies continuing to lead the way in innovation and competition in AI, the Executive Order proposes the following actions:
•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 expand grants for AI research in vital areas like healthcare and climate change.
•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 (FTC) to exercise its authorities.
•Use existing authorities to expand the ability of highly skilled immigrants and nonimmigrants with expertise in critical areas to study, stay, and work in the United States by modernizing and streamlining visa criteria, interviews, and reviews.
Advancing American leadership abroad — recognizing that AI's challenges and opportunities are global, the Executive Order proposes the following actions:
•Expand bilateral, multilateral, and multistakeholder engagements to collaborate on AI. The State Department, in collaboration, with the Commerce Department will lead an effort to establish robust international frameworks for harnessing AI's benefits and managing its risks and ensuring safety.
•Accelerate development and implementation of vital AI standards with international partners and in standards organizations, ensuring that the technology is safe, secure, trustworthy, and interoperable.
•Promote the safe, responsible, and rights-affirming development and deployment of AI abroad to solve global challenges, such as advancing sustainable development and mitigating dangers to critical infrastructure.
Ensuring responsible and effective government use of AI — to ensure the responsible government deployment of AI and modernize AI federal infrastructure, the Executive Order proposes the following:
•Agencies issue guidance for their use of AI, including clear standards to protect rights and safety, improve AI procurement, and strengthen AI deployment.
•Help agencies acquire specified AI products and services faster, more cheaply, and more effectively through more rapid and efficient contracting.
•Accelerate the rapid hiring of AI professionals as part of a government-wide AI talent surge. Agencies will provide AI training for employees at all levels in relevant fields.
The Executive Order also instructs numerous federal agencies to analyze and issue policy guidance on developing and using AI tools to achieve the above-identified policy objectives. The Executive Order does not specify how the federal agencies will carry out these mandates, so the implementation details appear to be left with the agencies.
The Executive Order broadly impacts those who develop and train AI models, and requires those entities to share test results with appropriate federal agencies to ensure compliance with the policy objectives.
This article reflects only the present personal considerations, opinions, and/or views of the authors, which should not be attributed to any of the authors' current or prior law firm(s) or former or present clients.
Notes
1 https://bit.ly/49rDjN2
By David McCombs, Esq., Eugene Goryunov, Esq., Dina Blikshteyn, Esq., and Jonathan Bowser, Esq., Haynes Boone
David McCombs is a partner in the Dallas office of Haynes Boone and serves as primary counsel for corporations in inter partes review. He can be reached at [email protected]. Eugene Goryunov is a partner in the intellectual property practice group in the firm's Chicago office. He is an experienced trial lawyer who represents clients in complex patent matters involving diverse technologies. He can be reached at [email protected]. Dina Blikshteyn is a partner in the intellectual property practice group in the firm's New York office. Blikshteyn's practice focuses on post-grant proceedings before the U.S. Patent and Trademark Office, preparing and prosecuting domestic and international patent applications, as well as handling trademark and other IP disciplines. She may be reached at [email protected]. Jonathan Bowser is of counsel in the firm's Washington, D.C., office. He focuses his practice on patent litigation disputes before the Patent Trial and Appeal Board and federal district courts. He can be reached at [email protected].
Image 1 within White House executive order expands regulation of artificial intelligence​David McCombs
Image 2 within White House executive order expands regulation of artificial intelligence​Eugene Goryunov
Image 3 within White House executive order expands regulation of artificial intelligence​Dina Blikshteyn
Image 4 within White House executive order expands regulation of artificial intelligence​Jonathan Bowser
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