President Biden Signs Executive Order on AI
Summary
On October 30, 2023, President Biden signed his Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. Among other things, the sweeping EO directs over 20 federal agencies to consider the development, use and potential regulation of AI models and systems. Akin’s summary of the EO is available here. We provide below a few high-level takeaways from the EO, but note that companies will need to review the EO’s implementing regulations (once published) to identify any new obligations: • New defined terms. Section 3 of the EO provides definitions for important terms like “artificial intelligence,” “AI model,” “dual-use foundation model,” “generative AI” and “model weight.” This is the first time the federal government has provided official definitions for many of these technical terms. These definitions may help establish a common baseline of understanding for future discussions both within the government and between government and the private sector. • Reporting requirements for “dual use foundation models.” The EO gives the Secretary of Commerce (Secretary) 90 days to “require . . . [c]ompanies developing or demonstrating an intent to develop potential dual-use foundation models” to provide the federal government with certain information about the development and testing of these models. The Secretary must also define the specific models that are subject to this reporting requirement. Pending those definitions, the requirement will apply (at least) to “any model that was trained using a quantity of computing power greater than 10 integer or floating-point operations, or using primarily biological sequence data and using a quantity of computing power greater than 10 integer or floating-point operations[.]” The EO also proposes a requirement that companies must report their “acquisition, development, or possession,” of “large-scale computing clusters” that have “a set of machines physically co-located in a single datacenter, transitively connected by data center networking of over 100 Gbit/s, and having a theoretical maximum computing capacity of 10 integer or floating-point operations per second for training AI.” • Considerations for Infrastructure as a Service (IaaS) Providers. The EO also directs the Secretary to propose regulations that would require US IaaS (e.g., cloud computing) providers and their non-US re-sellers to report when foreign persons use IaaS for certain AI “training runs.” Pending updated definitions, this reporting requirement will apply to training runs for models that require “a quantity of computing power greater than 10 integer or floating-point operations and [are] trained on a computing cluster” that meets the datacenter reporting requirements identified above. The EO also proposes new “know-your customer” (KYC) requirements for non-US re-sellers of US IaaS products. These proposed KYC requirements for non-US parties mirror the KYC requirements proposed for US IaaS providers in the Trump Administration’s 2021 EO “Taking Additional Steps To Address the National Emergency With Respect to Significant Malicious Cyber-Enabled Activities[.]” Additionally, many federal agencies were given specific directions to advance the EO’s objectives, with deadlines for implementation ranging between 30 and 540 days from the date of the EO’s publication. Akin provides a detailed breakdown of these deadlines here. For more on the EO, see Akin’s summary, key takeaways for health care and life sciences and our forthcoming analyses for privacy, intellectual property and more.
