New Federal Focus on AI, Data Privacy and Civil Rights Protection

On October 30, 2023, President Biden issued an Executive Order on the safety, security, and trustworthiness of artificial intelligence (the “Executive Order”).[1]  Given the recent adoption and integration of digital tools and services utilizing artificial intelligence, such as ChatGPT, that can quickly generate content, the Executive Order establishes new standards to protect the civil rights and privacy of individuals.

While the Executive Order acknowledges that artificial intelligence has the potential to provide significant assistance tackling challenges and problems, it also points out that it has the potential to “exacerbate societal harms,” “displace and disempower workers,” and “stifle competition.” President Biden calls for a unified effort by the government, private sector, academia and civil society to help ensure artificial intelligence is not used irresponsibly.

One area the Executive Order focuses on is the matter of data privacy. The popular tools that utilize artificial intelligence rely on a collection of data. These tools aggregate and analyze outside data to generate content, whether it is copywriting, emails, images, or other digital assets, at speeds faster than a human being would be able to achieve. To feed these artificial intelligence-equipped tools, data is captured to feed into artificial intelligence systems, including the personal data of individuals. Moreover, data is being captured whether individuals are aware of it or not – several high-profile service providers, like Zoom, have been in the news recently regarding changes to their privacy policies. While artificial intelligence has the potential to increase productivity, some digital tools now require your consent to share data as a term of use.

To address concerns regarding data privacy, the Executive Order supports initiatives that promote stronger privacy, including accelerating development and use of “privacy-preserving techniques” and “privacy-enhancing technology” at the federal level. The Executive Order defines these as “software or hardware solutions, technical process, techniques, or other technological means of mitigating privacy risks arising from data processing, including by enhancing predictability, manageability, disassociability, storage, security, and confidentiality.” The Executive Order also resolves to further research how privacy impact assessments can be helpful to mitigate privacy risks. Some states have already integrated similar self-assessment requirements into their own data privacy laws.

The Executive Order also addresses concerns that artificial intelligence can perpetuate discrimination, bias, and other abuses, particularly in justice, healthcare, and housing. Interestingly, the Executive Order seeks to provide guidance specifically to landlords, federal benefit programs, and criminal justice systems to develop best practices and standards for using artificial intelligence systems.

But despite the strong focus on restricting the inappropriate or unfettered use of artificial intelligence, the Executive Order also acknowledges that promoting innovation in artificial intelligence is critical to ensuring fair competition remains. In particular, the Executive Order seeks to ensure fair and open competition for small developers and entrepreneurs working in artificial intelligence by providing technical assistance and resources.

Finally, the Executive Order seeks to work with other nations to support international collaboration to help govern proper and safe use of artificial intelligence. Several governments that already maintain strong data privacy laws, such as the European Union, the United Kingdom, and India, have already begun working with the United States and other nations to develop frameworks for artificial intelligence governance.[2]

As the U.S. government turns its attention to governing the development and use of artificial intelligence, the private sector should understand that artificial intelligence has already become integrated into their businesses. As the cost and effort of creation declines due to availability of artificial intelligence tools, businesses should consider whether these tools are quietly collecting data or operating on biases that fail to provide accurate feedback.

In the immediate, businesses should take the time to review their suppliers, service providers, and digital tools to understand whether artificial intelligence is being used to automate processes, aggregate data, or create content. Acknowledging the extent of your reliance on artificial intelligence will lay the foundation for your own plan to safely use artificial intelligence in your business.

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[1] https://www.whitehouse.gov/briefing-room/presidential-actions/2023/10/30/executive-order-on-the-safe-secure-and-trustworthy-development-and-use-of-artificial-intelligence/

[2] https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/30/fact-sheet-president-biden-issues-executive-order-on-safe-secure-and-trustworthy-artificial-intelligence/