President Biden’s Latest Executive Order Mandates Expansive U.S. Agency Regulation of AI and Encourages Protection of Citizens’ Privacy

President Joe Biden on Monday, October 30, 2023, issued a comprehensive and ambitious Executive Order on the Safe, Secure and Trustworthy Development and Use of Artificial Intelligence in an attempt to regulate AI to protect the security of US citizens. The Executive Order is the latest of the Biden Administration’s measures to encourage the federal government to take a proactive approach to regulating technology, data privacy and security, while encouraging technological innovation. 

The Executive Order requires companies that develop AI systems that may pose a serious risk to national security, economic security or public health and safety to notify the federal government when training their models, and then to share results of any “red-team” tests with the government. The Order directs the National Institute of Standards and Technology (NIST) to set what the Administration terms “rigorous standards” for extensive testing before these companies may release their AI systems to the public. 

At 111 pages, the Executive Order also mandates a wide variety of federal agencies to participate, and encourages Congress to pass bipartisan legislation to safeguard privacy. The Executive Order touches multiple industries, from healthcare to national security, to civil rights, to employment. For example, the Order requires the Departments of Energy and Homeland Security to address AI systems’ threats to critical infrastructure, chemical, biological, radiological, nuclear and cybersecurity risks, reinforcing that the Administration’s focus on cyber threats is just as important as biological and nuclear threats to national security. The Department of Labor must investigate and act on the potential that AI might cause rampant job loss. The Department of Commerce must develop guidance for authenticating AI content, and using watermarking to clearly identify AI-generated content. This is critical to national security, infrastructure and public health as AI-generated “deep fakes” proliferate and grow more realistic as the AI technology learns from publicly-sourced data.

The Executive Order recognizes that the same technology that creates “deep fakes” and other AI-generated content poses a serious threat to personal data by making it easier to extract, identify and exploit personal data. The Administration is calling on this partisan Congress to pass “bipartisan data privacy legislation” to protect Americans by “prioritizing federal support for accelerating the development and use of privacy-preserving techniques.” It thus remains unclear whether in the long term the Administration will be able to convince a divided Congress to effect these goals. In the short term, however, the Administration appears willing to continue using its Executive powers to advance the global discussion on technology, innovation and privacy, and to task Executive Branch agencies with implementing rules and regulations until the Legislative Branch acts.