America’s Push to Lead the AI Way: President Biden Issues Executive Order Imposing New Rules for AI

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Benjamin S. Levine

November 9, 2023 Download as PDF

On October 30, 2023, President Joe Biden issued an Executive Order on the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.”  This article offers a general overview of the Executive Order and some takeaways for employers.

Background

Artificial Intelligence (“AI”) is a term that Stanford Professor John McCarthy coined in 1955 to mean “the science and engineering of making intelligent machines.”  AI is a machine’s ability to perform the cognitive functions we associate with human minds, such as perceiving, reasoning, learning, interacting with any environment, problem solving, and even exercising creativity.  The recent uptick in newsworthy AI products, like ChatGPT, are known as generative AI, where programs can learn from data to create, or generate, new content that seems human-made.  As defined by IBM, generative AI refers to deep-learning models that can generate high-quality text, images, and other content based on the data on which they were trained.

The purpose of President Biden’s October 30, 2023 Executive Order (“EO”) is to advance and govern the safe and responsible development and use of AI so that AI can be harnessed for good, despite its many risks (e.g., fraud, discrimination, displaced workers, national security risks, etc.).

The EO defines “artificial intelligence” to mean: “a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations, or decisions influencing real or virtual environments.”

The EO states that the safe and responsible use of AI “demands a society-wide effort that includes government, the private sector, academia, and civil society…The 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.”

Eight Guiding Principles and Priorities

The EO identifies eight “guiding principles and priorities” for the safe and responsible development and use of AI:

1. AI must be safe and secure. This principle includes standardized testing and evaluations of AI, and effective labeling and content provenance mechanisms so that Americans are able to determine when content is generated using AI and when it is not.
2. Promote responsible innovation, competition, and collaboration.
3. Responsibly develop and use AI with a commitment to supporting American workers. AI should not be deployed in ways that undermine rights, worsen job quality, encourage undue worker surveillance, lessen market competition, introduce new health and safety risks, or cause harmful labor-force disruptions.  AI development should improve workers’ lives, positively augment human work, and help all people safely enjoy the gains and opportunities from technological innovation.
4. AI policies must be consistent with advancing equity and civil rights.  It is necessary to hold those developing and deploying AI accountable to standards that protect against unlawful discrimination and abuse, including in the justice system and the Federal Government.
5. Protect the interests of Americans who use, interact, or purchase AI and AI-enabled products.  The Federal Government will enforce existing consumer protection laws and principles and enact appropriate safeguards against fraud, unintended bias, discrimination, infringements on privacy, and other harms from AI.
6.  Protect Americans’ privacy and civil liberties as AI continues to advance.  The Federal Government will ensure that the collection, use, and retention of data is lawful, secure, and mitigates privacy and confidentiality risks.
7. Manage the risks from the Federal Government’s own use of AI and increase its internal capacity to regulate, govern, and support responsible use of AI to deliver better results for Americans.  President Biden’s administration will take steps to attract, retain, and develop public service-oriented AI professionals from all communities and disciplines.
8. The United States Federal Government should lead the way to global societal, economic, and technological progress.  President Biden’s administration will engage with international allies and partners in developing a framework to manage AI’s risks, unlock AI’s potential for good, and promote common approaches to shared challenges.

The EO outlines many steps and action items to be taken by various federal government departments and agencies, such as the Department of Commerce (acting through the Director of the National Institute of Standards and Technology)[1], Department of Homeland Security, and Department of Energy, within 90, 180, 270, and 365 days of the EO, to put the eight guiding principles and priorities, set forth above, into action.

The EO also establishes the White House Artificial Intelligence Counsel—the function of which is to coordinate the activities of agencies across the Federal Government to ensure the effective formulation, development, communication, industry engagement related to, and timely implementation of, AI-related policies, including policies set forth in the EO.

The EO as It Relates to Employment

Support for American Workers
As it relates to President Biden’s “commitment to supporting American workers,” the EO instructs the Secretary of Labor to:

• submit to the President a report within 180 days of the EO analyzing the abilities of agencies to support workers displaced by the adoption of AI and other technological advancements, including an assessment of how current or former operational Federal programs designed to assist workers facing job disruptions – including unemployment insurance and programs authorized by the Workforce Innovation and Opportunity Act (Public Law 113-128) – can be used to respond to possible future AI-related disruptions, and to identify options, including legislative measures, to strengthen or develop additional Federal support for workers displaced by AI
• develop and publish principles and best practices for employers that could be used to mitigate AI’s potential harms to employees’ well-being and maximize its potential benefits, which should include specific steps for employers to take with regard to AI and which should discuss: (a) job-displacement risks and career opportunities related to AI; (b) labor standards and job quality implicated by AI in the workplace; and implications for workers of employers’ AI-related collection and use of data about them

• issue guidance to make clear that employers that deploy AI to monitor or augment employees’ work must continue to comply with protections that ensure that workers are compensated for their hours worked pursuant to the Fair Labor Standards Act of 1938 and all other legal requirements.

Preventing Unlawful Discrimination in Connection with AI Used for Hiring
Section 7.3 of the EO entitled “Strengthening AI and Civil Rights in the Broader Economy” provides that, within 365 days of the date of the EO, to prevent unlawful discrimination from AI used for hiring, the Secretary of Labor shall publish guidance for Federal contractors regarding nondiscrimination in hiring involving AI and other technology-based hiring systems.

This section also attempt to address the use of AI by people with disabilities: “To help ensure that people with disabilities benefit from AI’s promise while being protected from its risks, including unequal treatment from the use of biometric data like gaze direction, eye tracking, gait analysis, and hand motions, the Architectural and Transportation Barriers Compliance Board is encouraged, as it deems appropriate, to solicit public participation and conduct community engagement; to issue technical assistance and recommendations on the risks and benefits of AI in using biometric data as an input; and to provide people with disabilities access to information and communication technology and transportation services.”

What Employers Should Do

Employers should remain up-to-date with AI-related workplace guidelines and best practices, including the principles and best practices to be published by the Secretary of Labor in accordance with President Biden’s October 30, 2023 EO.

This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice.  Always consult an attorney with specific legal issues.

[1] The EO directs the National Institute of Standards and Technology (NIST) to be instrumental in developing guidelines and best practices for AI systems, including developing a companion resource to the NIST AI Risk Management Framework publication, which can be found here.