President Joe Biden’s administration has issued its long-awaited executive order on artificial intelligence.
The Oct. 30 directive instructs more than a dozen federal agencies to evaluate the technology’s impact on their work, promulgate rules, and invoke statutory authority to implement the administration’s goals. Those goals aim to make AI safer without sacrificing the country’s current global leadership on the issue.
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The order tasks regulatory authorities, including the departments of Commerce, Education, Energy, Health and Human Services, Homeland Security, Transportation, and the Copyright Office and U.S. Patent and Trademark Office, to evaluate the risks and benefits from the use of AI in biotechnology, competition, consumer protection, cybersecurity, education, energy, financial services, healthcare, housing, intellectual property, labor, law enforcement, national security, privacy, trade, and telecommunications.
Beyond considering how federal agencies will utilize AI technologies, the order includes specific premarket testing and disclosure requirements for the private development of AI when technologies affect national security and critical infrastructure. Most of the regulatory consequences for the private sector will flow from the setting of technical standards issued in the form of guidance from the agencies. Because of the federal government’s vast buying power, these requirements may have a significant impact on the development of AI.
“The Executive Order establishes new standards for AI safety and security, protects Americans’ privacy, advances equity and civil rights, stands up for consumers and workers, promotes innovation and competition, advances American leadership around the world, and more,” the White House said in a press statement.
The Biden administration is the first to act to regulate AI in the U.S. Various proposals for regulating AI are circulating on Capitol Hill, and Senate Majority Leader Chuck Schumer (D-NY) has hosted high-profile summits on the issue. Those included CEOs of leading AI companies, including OpenAI’s Sam Altman, Nvidia’s Jensen Huang, and executives heavily investing in AI, such as Elon Musk and Mark Zuckerberg. But Congress has yet to pass anything into law and is unlikely to do so this year.
The order cites the Defense Production Act as the authority to put in place certain aspects of its plan, but that has traditionally been used in the context of national defense emergencies, to commandeer or regulate private industry.
For other aspects of the order, critics think it stretches agencies' powers too far. “It is unconstitutional for federal agencies to use the order to regulate actions of the private sector,” wrote Washington Examiner columnist James Rogan. “Congress legislates. The president 'executes' the laws legislated by Congress,” he continued. The Biden administration’s executive orders on forgiving $430 billion of student debt and mandating COVID vaccines or testing for private industry were blocked by the Supreme Court over similar overreaching concerns.
Other critics are concerned about the order’s impact on AI innovation.
Adam Thierer, a senior fellow at the R Street Institute, posted, “The danger exists that the country could put algorithmic innovators in a regulatory cage, encumbering them with many layers of bureaucratic permission slips before any new product or service could launch.” He continued, “Biden’s new EO could accelerate the move to tie the hands of algorithmic entrepreneurs even if Congress does not pass any new legislation on this front.”
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Just two days after the announcement of the order, leaders from 28 countries met with business executives and researchers in the U.K. to discuss global regulation of AI. The summit produced the Bletchley Declaration, which encourages the signatory countries' AI development to take place “alongside increased transparency by private actors developing frontier AI capabilities, appropriate evaluation metrics, tools for safety testing, and developing relevant public sector capability and scientific research.” But the participation of both the U.S. and China, countries in fierce competition for dominance in AI technology, in the event suggests the agreement is more aspirational than substantive.
The U.K. summit and domestic efforts to regulate AI take place in the shadow of the EU AI Act. The act will be the first comprehensive law governing AI and is expected to be finalized by the end of this year or soon thereafter. It’s consistent with the EU’s more heavy-handed approach to regulating tech and may extend the bloc’s record for not having any global technology leaders, with eight of the top 10 in the U.S., one in China, and one in Taiwan.