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Navigating the AI Landscape

Decoding the Impact of President Biden's AI Executive Order on Government Lawyers

by Gina Jurva

In the ever-evolving chronicle of technology, President Biden's recent Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (AI) has thrown the spotlight on the crucial role AI plays, with significant implications for government attorneys. For our colleagues in government law, this executive order (EO) is more than just a bureaucratic directive – it's a nod to the significance of AI and a call for its responsible integration.

The EO is essentially a blueprint, guided by eight key principles, designed to empower the U.S. government in tapping into the vast advantages of AI, all while keeping a watchful eye on potential pitfalls. 

Federal agencies are front and center in this narrative, with specific responsibilities outlined in the order. For example, the National Institute of Standards and Technology (NIST) will set standards, and the Department of Homeland Security (DHS) will apply these to critical infrastructure sectors. Government attorneys may be involved in the development and implementation of standards for AI safety and security. 

President Biden's EO goes beyond mere acknowledgment of the transformative power of AI within government; it explicitly addresses both the utilization of AI by the government and the accompanying responsibilities. 

But – it's not just a government affair. Buried within its pages are insights and a roadmap, a treasure trove that private sectors, including legal professionals, are eager to explore.

For lawyers, it's an invitation to ride the AI wave, a chance to boost efficiency and refine decision-making. Yet, it's also a call for caution, reminding us all to navigate this brave new world with a keen eye on ethics and responsible practice. 

Definition of “Artificial Intelligence”

In a nutshell, the EO employs the definition of "artificial intelligence" (AI) as outlined in 15 U.S.C. 9401(3): "a machine-based system capable of, for a specified set of human-defined objectives, making predictions, recommendations, or decisions that influence real or virtual environments."

What does this mean? Well, it broadens the scope of the EO beyond just generative AI. Essentially, any machine-based system involved in making predictions, recommendations, or decisions is now under the EO's influence. So, the impact is more extensive than previously thought. 

Ensuring Responsible and Effective Use of AI

The directive recognizes AI's potential to enhance regulatory processes, benefit distribution, and cost efficiency, while also acknowledging the inherent risks. At its core, the directive focuses on ensuring the responsible and effective use of AI by government agencies. It outlines measures to guide agencies in AI deployment, including issuing comprehensive guidance with clear standards, improving procurement practices, and strengthening deployment procedures. The directive also emphasizes the need to expedite the acquisition of AI products and services, rapidly hire AI professionals, and provide relevant training for government employees at all levels. Going beyond national borders, the Administration aims to collaborate internationally to establish a robust global framework for AI governance. This comprehensive approach underscores a commitment to responsible and ethical AI use on a global scale.

Implications for Government Lawyers

Here's a breakdown of some of the potential impacts on government attorneys and their approach to technology adoption. 

Among other things, the EO mandates that creators of AI systems disclose safety test outcomes and other crucial information to the U.S. government. Government attorneys will need to navigate new standards for AI safety and security based on this mandate, aligning with the Defense Production Act. Compliance with these measures will be crucial for ensuring that AI systems employed by government agencies are safe, secure, and trustworthy.

Government attorneys should proactively engage with AI developers, facilitating a smooth exchange of information to guarantee the safety and security of AI systems deployed by government agencies.

National Security and Public Safety

The EO carries significant national security implications as AI technology plays an increasingly vital role in defense and intelligence operations. By establishing new standards for AI safety and security, the directive ensures that the development and use of AI in these sectors adhere to rigorous guidelines, mitigating risks and enhancing the overall security posture of the nation. 

It emphasizes the responsible and ethical deployment of AI within military and intelligence contexts, aligning with broader efforts to safeguard the interests of the United States on a national and global scale.

Government attorneys specializing in national security may wish to be actively involved in the development and implementation of guidelines to govern AI use in defense and intelligence. Their expertise ensures that AI is a force multiplier without compromising ethical and legal standards.

Advancing Equity and Civil Rights

This directive will significantly impact the work of government attorneys by emphasizing the need to address algorithmic discrimination. It calls for training, technical assistance, and collaboration between the Department of Justice and Federal civil rights offices to establish best practices for investigating and prosecuting civil rights violations linked to AI. Government attorneys will play a crucial role in ensuring fair and unbiased AI practices, aligning with civil rights principles, and actively participating in the development and implementation of these best practices.

Data Collection and Use

With the emphasis on protecting Americans' privacy, government attorneys will play a key role in evaluating how agencies collect and use commercially available information, especially when utilizing AI. Guidelines and evaluations of privacy-preserving techniques will be essential components to safeguard citizens' data. 

Similarly,  attorneys working with government agencies will need to assess and potentially adjust how agencies collect and use commercially available information. Guidelines for evaluating the effectiveness of privacy-ensuring techniques will impact data management practices within government entities.

There are several actions that attorneys and legal staff in government agencies can do to be best prepared for AI. First, staying informed is paramount. Keep a vigilant eye on the horizon for new AI regulations, court rulings, and legal perspectives. Regularly disseminate these updates within your team and consider organizing training sessions to ensure everyone is well-versed in the latest information. Forge connections with other agencies and/or regulatory bodies and actively participate in industry groups to stay abreast of emerging trends and best practices.

Conduct a Comprehensive Assessment

Conducting a comprehensive assessment of your organization's AI integration is the next crucial step. Gain a thorough understanding of how AI is currently utilized, including the data it processes. Identify potential legal and ethical challenges through regular audits and reviews. Collaborate closely with other departments to guarantee the responsible and ethical use of AI, addressing any identified risks promptly.

Engage These Key Stakeholders

Collaboration is key, especially when it comes to technology stakeholders within government legal departments. Engage with your agency's Chief Technology Officer (CTO) and the IT department to align your organization's AI utilization with legal requirements and ethical standards. Establish regular meetings and open channels of communication specifically tailored to the unique needs of your agency. This proactive approach will prove invaluable as new policies are introduced, and collaborative efforts are required to develop procedures for responsible AI use within the public sector legal landscape.

Review All AI Agreements

Moving forward, a meticulous review of contracts with AI implications is imperative. Conduct a systematic review of all contracts, focusing on how AI is utilized within government legal departments. Identify potential legal risks and ensure that these contracts align with the latest regulations governing AI in the public sector. 

Collaborate closely with procurement and contract management teams within your agency to guarantee that AI-related contracts undergo thorough vetting and ongoing management in compliance with government standards. This tailored approach ensures that AI deployments within your legal department are not only legally sound but also in adherence to specific government regulations and protocols.

Address Ethical and Social Impacts

Lastly, government attorneys must address the ethical and social impacts of AI within their legal departments. Stay mindful of how AI systems can inadvertently perpetuate bias and discrimination. Familiarize yourself with strategies to mitigate these risks through regular training and discussions. Collaborate closely with HR and diversity and inclusion teams to ensure that your organization's use of AI aligns with principles of fairness and equality. 

The Road Ahead

For government attorneys, the road ahead involves staying informed, conducting comprehensive assessments, and collaborating with technology stakeholders. Reviewing contracts, addressing ethical impacts, and navigating the complexities of AI will be essential tasks. The directive challenges legal professionals to balance innovation with responsibility, ensuring that the government's use of AI aligns with principles of fairness, equality, and legal standards.

As government attorneys navigate the waves of change, the emphasis on ethical AI practices, compliance, and collaboration positions them as key players in harnessing the benefits of AI while mitigating potential risks. 

The journey ahead promises a dynamic intersection of law and technology, where government attorneys play a crucial role in shaping the responsible use of AI within the public sector.

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