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President Joe Biden issued an executive order on the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence” on Oct. 30, 2023. The EO discusses the groundwork for federal agencies to implement measures to prepare for the furtherance of AI technologies. 

The EO’s goal is to establish a “coordinated, Federal Government-wide approach” to the development of AI. The 117-page EO covers a broad scope. The president’s effort affects any machine-based system that makes predictions, recommendations, or decisions.

The EO is the first to comprehensively address the use of artificial intelligence by the government and employers. Federal agencies are directed to take certain action within the next year. Employers must take note that this action imposes new policies and affects civil rights issues and employment opportunities. 

Steps are already being taken to carry out the EO. For example, on Jan. 10, 2024, the Justice Department’s (DOJ) Civil Rights Division convened a meeting with the heads of civil rights offices and senior officials from multiple federal agencies, including the Equal Employment Opportunity Commission, Department of Health and Human Services, and Department of Labor. The purpose of the meeting was to discuss the critical intersection of artificial intelligence and civil rights as directed by the EO.

This article provides an overview of the EO’s eight guiding principles. 

     1. Standardized Evaluations of AI Systems 

Under the EO, ensuring that AI is safe and secure “requires robust, reliable, repeatable, and standardized evaluations of AI systems, as well as policies, institutions, and as appropriate, other mechanisms to test, understand, and mitigate risks from these systems before they are put to use.” 

The goal is to protect against AI-enabled fraud and deception. The EO looks to establish a cybersecurity program to secure software and networks, as well as orders the development of a National Security Memorandum to direct further actions on AI and security. 

The EO further instructs the Departments of State and Homeland Security to streamline visa processing times for noncitizens traveling to the United States to “work on, study, or conduct research in AI or other critical and emerging technologies.”

     2. Innovation, Competition, and Collaboration 

The EO aims to ensure “a commitment to supporting American workers” by demanding responsible development and use of AI. To this end, the EO encourages immigrants with expertise to study, stay, and work in the United States. 

It directs the development of the National AI Research Resource, a tool which provides AI researchers and students access to key data. Additionally, it expands AI research in areas such as healthcare and climate change. The EO also gives small developers and entrepreneurs assistance with using AI to grow their business. 

     3. Supporting Workers by Understanding Impact of AI 

Biden’s action also aims to develop best practices to mitigate the harms and maximize the benefits of AI for workers. For instance, the EO recognizes the need to better understand AI’s potential labor-market impacts and the obligation to identify options for strengthening federal support for workers facing labor disruptions. 

To that end, the EO directs the secretary of labor to prepare and submit “a report analyzing the abilities of agencies to support workers displaced by the adoption of AI and other technological advancements.”

     4. AI Policies Advance Principles of Equity and Civil Rights 

The Biden Administration is concerned that irresponsible use of AI can lead to discrimination and other issues in justice, healthcare, and housing. To avoid this, the EO aims to: 

  • provide clear guidance to federal contractors (as well as other groups) to keep AI algorithms in check;
  • encourage trainings and other technical assistance between the DOJ and federal civil rights offices on best practices for investigating and prosecuting violations related to AI; and 
  • ensure fairness in the criminal justice systems by developing best practices on the use of AI in different areas. 

     5. Americans’ Privacy

Americans’ privacy also may be impacted by AI use, according to the Biden Administration. Thus, the president encourages strengthening privacy-preserving research and technologies. For example, the EO prioritizes funding to a Research Coordination Network (RCN) to advance breakthroughs and developments. 

The National Science Foundation will work with the RCN to promote the adoption of AI by federal agencies. The EO further emphasizes the importance of evaluating how agencies collect and use commercially available information and mandates that federal agencies develop guidance on how to evaluate the effectiveness of privacy-preserving techniques. 

     6. Consumers, Patients, and Students 

The Department of Health and Human Services will establish a program to receive and remedy reports of unsafe healthcare practices involving AI. The EO also encourages creation of resources to support educators deploying AI-enabled educational tools.

     7. Responsible and Effective Government Use of AI

Biden’s EO aims to use AI in a way that expands agencies’ capacity to regulate, govern, and enhance the security of government systems. New guidance addressing agencies’ use of AI and efforts to accelerate the hiring of AI professionals is forthcoming. 

As part of this new guidance, for example, agencies will be required to designate permanent “Chief AI Officers” who will “coordin[ate] the development and use of AI in agencies’ programs and operations.” AI training will be provided for employees at all levels in relevant fields. 

     8. American Leadership Abroad 

Biden’s EO also aims to collaborate with international partners on AI to develop a framework to manage AI risks and promote a common approach to shared AI challenges. 

Biden’s EO is ambitious, far-reaching, and requires coordination of many agencies and stakeholders. It will be interesting to observe how the Biden Administration implements the EO’s mandates and how the regulated community reacts. Stay tuned. 

This resource is based on the ACC webcast “Artificial Intelligence: What Does Biden's Executive Order Mean for Employers?” delivered by Jackson Lewis Principals Eric J. Felsberg and Joseph J. Lazzarott.

The presentation covered Biden’s executive order on AI, the potential for AI-related discrimination, the challenges of AI privacy and data security concerns, the importance of employers evaluating their AI tools for evidence of impact, and the emerging regulatory obligations.

Region: United States
The information in any resource collected in this virtual library should not be construed as legal advice or legal opinion on specific facts and should not be considered representative of the views of its authors, its sponsors, and/or ACC. These resources are not intended as a definitive statement on the subject addressed. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers.