Welcome to the November edition of Akin Intelligence. Looking back, October 2023 may be remembered as the month when the U.S. government tried to assume the mantle of global leadership on responsible artificial intelligence (AI) regulation. Specifically, the U.S. Department of Commerce (Commerce) broadened its export controls on semiconductors used to develop AI foundation models, and the Biden administration published its long-awaited executive order (EO) on AI. The long-term impact of these actions remains to be seen.

The past month also saw an increase in international pledges of cooperation on responsible use and regulation of AI, new AI products entering the market and an AI-assisted "final" Beatles song, Now and Then.

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In this Issue

  • Akin Spotlight
  • Federal Action
  • Congressional Action
  • Health Care
  • Judicial Action
  • State Action
  • Industry Action
  • EU and U.K. Updates
  • China Updates
  • Akin Thought Leadership

Akin Spotlight

Watch Now: AI Executive Order

In the inaugural edition of the Akin Intelligence series, lobbying and public policy partner Hans Rickhoff and lobbying and public policy senior counsel Reggie Babin lead a discussion with international trade counsel Alan Hayes on the current state of AI policy, with a specific focus on the recent Biden administration executive order (EO) on AI. They discuss the implications of the EO for clients, its potential impact on future legislation, and the broader themes coloring the AI conversation globally. They also discuss the role of various agencies in implementing the EO and the potential challenges they might face.

Listen Now: You can listen to this episode wherever you consume podcasts. Subscribe and listen to OnAir with Akin via iTunes, SoundCloud, YouTube, Spotify or Google podcasts.

Federal Action

President Biden Signs Executive Order on AI

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 10^26 integer or floating-point operations, or using primarily biological sequence data and using a quantity of computing power greater than 10^23 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 U.S. IaaS (e.g., cloud computing) providers and their non-U.S. 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-U.S. re-sellers of U.S. IaaS products. These proposed KYC requirements for non-U.S. parties mirror the KYC requirements proposed for U.S. 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.

To view the full article, click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.