Earlier today, the White House issued a Fact Sheet summarizing its Executive Order on a comprehensive strategy to support the development of safe and secure artificial intelligence (“AI”).  The Executive Order follows a number of actions by the Biden Administration on AI, including its Blueprint for an AI Bill of Rights and voluntary commitments from certain developers of AI systems.  According to the Administration, the Executive Order establishes new AI safety and security standards, protects privacy, advances equity and civil rights, protects workers, consumers, and patients, promotes innovation and competition, and advances American leadership.  This blog post summarizes these key components.

  • Safety & Security StandardsThe Executive Order sets out several required actions for developers of AI systems.  Notably, the White House, “in accordance with the Defense Production Action,” will require companies developing any foundation model “that poses a serious risk to national security, national economic security, or national public health and safety” to notify the federal government when training the model and provide results of all red-team safety tests to the government. Relatedly, the Executive Order directs certain federal agencies to undertake the following actions and initiatives:
    • National Institute of Standards and Technology:  establish standards for red-teaming required before the public release of an AI system. 
    • Department of Homeland Security:  apply the NIST standards to use of AI in critical infrastructure sectors and establish an AI Safety and Security Board. 
    • Departments of Energy and Homeland Security:  address AI systems’ threats to critical infrastructure, as well as chemical, biological, radiological, nuclear, and cybersecurity risks; it also calls for the creation of standards for biological synthesis screening.
    • Department of Commerce:  develop guidance for content authentication and watermarking to label content generated by AI and received by the government; it also suggests that federal agencies would be required to use these tools.
    • National Security Council & White House Chief of Staff:  develop a National Security Memorandum that ensures that the United States military and intelligence community use AI safely, ethically, and effectively.
  • Privacy.  The Executive Order sets forth a number of requirements for the use of personal data for AI systems, including the prioritization of federal support for privacy-preserving techniques; strengthening privacy-preserving research and technologies (e.g., cryptographic tools); evaluating how agencies collect and use commercially available information containing personal data (including information procured from data brokers); and developing guidelines for federal agencies to evaluate the effectiveness of privacy-preserving techniques.
  • Equity and Civil RightsTo address concerns around equity and civil rights, the Executive Order sets forth a number of new requirements for documentation, coordination, and best practices.  Specifically, the Executive Order calls for clear guidance to landlords, Federal benefits programs, and Federal contractors to keep AI systems from being used to exacerbate discrimination.  The Executive Order also requires 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.  Additionally, the Executive Order calls for the creation of best practices on the use of AI in sentencing, parole, probation, and related topics for the criminal justice system.
  • Consumers, Patients, and StudentsRecognizing that AI can have unique impacts on consumers, patients, and students, the Executive Order directs agencies and certain sectors to engage in the following activities: 
    • Healthcare:  To help advance the responsible use of AI in healthcare and the life sciences sector, including for drug development, the Department of Health and Human Services must establish a safety program to receive reports of, and act to remedy, harms or unsafe AI healthcare practices (see our prior post about FDA’s thinking on the use of AI and digital health technologies in drug development here).
    • Education:  The Executive Order calls for the creation of resources to support educators deploying AI-enabled tools.
    • Workers:  After acknowledging that AI offers the promise of improved productivity, the Executive Order requires the development of principles and best practices to mitigate harms and maximize benefits for workers, including by addressing job displacement and guidance for evaluating job applications fairly.  It also requires the production of a report on AI’s potential labor-market impacts.
  • Innovation and Competition.  The Executive Order sets forth a number of priorities to ensure American leadership in AI innovation, such as the creation of a pilot of the National AI Research Resource, a tool that will provide AI researchers and students with key AI resources and data and grant programs.  The Executive Order also discusses updates to the immigration process for individuals with expertise in critical AI areas.  Importantly, the Executive Order directs the Federal Trade Commission to exercise its legal authority to encourage a competitive AI ecosystem.
  • Leadership on International Frameworks.  The Executive Order directs the State Department and Department of Commerce to lead an effort to establish international frameworks governing AI.  These efforts are intended to support and compliment the G-7 Hiroshima Process, the UK Summit on AI Safety, India’s leadership as Chair of the Global Partnership on AI, and ongoing discussions at the United Nations.
  • Government Use of AIThe Executive Order recognizes the potential for AI systems to drive better results in the delivery of government services to citizens and directs certain actions to ensure the responsible deployment of AI by government entities.  For example, it requires guidance for agencies’ use of AI, improvements to the process for government acquisition of AI, and the hiring of AI talent by governments.

We are continuing to review and digest the content of the Executive Order and expect to supplement this post with additional observations across our blogs.

Covington Digital Health Team

Stakeholders across the healthcare, technology and communications industries seek to harness the power of data and information technology to improve the effectiveness and efficiency of their products, solutions and services, create new and cutting-edge innovations, and achieve better outcomes for patients. Partnering with…

Stakeholders across the healthcare, technology and communications industries seek to harness the power of data and information technology to improve the effectiveness and efficiency of their products, solutions and services, create new and cutting-edge innovations, and achieve better outcomes for patients. Partnering with lawyers who understand how the regulatory, IP, and commercial pieces of the digital health puzzle fit together is essential. Covington offers unsurpassed breadth and depth of expertise and experience concerning the legal, regulatory, and policy issues that affect digital health products and services. To learn more, click here.