My Two Cents: How President Biden’s Executive Order on AI Impacts the Practice of Law - it does and doesn't.
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President Biden's recent Executive Order (Order) on Safe, Secure, and Trustworthy Artificial Intelligence marks a significant milestone in the governance of AI technologies. This comprehensive directive aims to establish robust standards for AI safety and security. Its goals include protecting privacy and civil rights while promoting innovation and protecting intellectual property rights. For attorneys, this announcement is of paramount importance as it directly impacts the practice of law, introducing new dimensions to legal compliance, ethical considerations, and the overall legal landscape. Legal innovators and industrialists like Jack Newton, CEO of CLIO, see this Order as an important step taken by the government: I am hopeful that the newly introduced AI legislation will not only uphold the highest standards of security and privacy but also ensure equitable access and unbiased application within legal frameworks.
Here is a summary of the impact it will have on lawyers:
AI Safety and Security:
The Order mandates developers of powerful AI systems to share safety test results and critical information with the U.S. government. For attorneys, this introduces a new layer of compliance and due diligence. Legal professionals will need to guide their clients through these requirements, ensuring that AI systems adhere to the mandated safety and security standards. This is particularly crucial for companies dealing with AI technologies that pose serious risks to national security or public health. Likewise, lawyers representing parties who have been harmed by a company's use of AI will need to know the latest in AI technology in order to advocate the best strategy for their clients.
Privacy and Data Protection:
With AI’s capability to extract and exploit personal data, the Order calls for heightened privacy protections. The directive’s emphasis on privacy-preserving techniques and evaluation of data collection practices necessitates an attorney’s thorough understanding of AI technologies and their implications on privacy. Attorneys will play a crucial role in advising clients on data protection strategies, ensuring compliance with privacy laws, and navigating the legal complexities of AI-driven data processing. Attorneys must also ensure their use of AI in their practice protects their client’s Personal Identifiable Information (PII).
Equity and Civil Rights:
The Order addresses the potential of AI to perpetuate discrimination and bias, particularly in sectors like housing, healthcare, and criminal justice. Legal professionals will need to stay vigilant, ensuring that AI systems employed by their clients do not result in discriminatory outcomes or violate civil rights. Likewise, Attorneys who are prosecuting parties using AI to discriminate against members of the public will need to have a solid understanding of how AI works in these matters.
Consumer Protection:
the president’s order will likley set forth new regulations and policies that will affect most practicing lawyers.
AI technologies can potentially transform consumer experiences but also raise concerns about potential harms and deceptive practices. The Executive Order calls for standards and best practices to detect AI-generated content and authenticate official communications. Attorneys working in consumer protection will need to familiarize themselves with these standards, advising clients on compliance, advising clients who are victims, and addressing potential legal challenges arising from AI-driven consumer interactions.
Immigration Law
Although the Order is not directly focused on immigration law, it could indirectly affect the field. One specific aspect of the Order calls for using existing authorities to expand the ability of highly skilled immigrants and nonimmigrants with expertise in critical areas, including AI, to study, stay, and work in the United States. This could lead to changes in visa criteria and processes, potentially affecting how immigration attorneys advise clients in the tech sector. The emphasis on AI could lead to a higher demand for skilled workers in this field, possibly influencing the landscape of employment-based immigration. Immigration lawyers may need to stay updated on any new policies or procedural changes resulting from this Order to guide their clients through the visa application process.
Supporting Workers:
The impact of AI on the workforce is a critical aspect of the Order. Attorneys specializing in labor law will find this directive particularly pertinent, as it addresses issues related to job displacement, workplace equity, and labor standards. Legal professionals will play a vital role in navigating the legal complexities of AI in the workplace, ensuring that workers’ rights are protected, and advising employer-clients on best practices to mitigate potential harms.
Promoting Innovation and Competition and Protecting Intellectual Property:
The Order emphasizes the need to maintain America’s leadership in AI innovation and competition. For attorneys working in intellectual property, technology, and antitrust law, this directive underscores the importance of fostering a competitive AI ecosystem while protecting intellectual property rights. Legal professionals will need to stay abreast of developments in AI technologies, advising clients on innovation strategies, and ensuring compliance with copyright, intellectual property, and antitrust laws.
Attorneys Working for the Government:
The Order will affect government attorneys twofold -
First, government attorneys must be abreast of the same issues discussed in this post, like any private attorney. Government attorneys basically have the same legal and ethical duties as private attorneys. They, too, have the same security, bias, privacy, civil rights, and intellectual property concerns private practitioners have with this Order.
Second, government attorneys will be tasked with ensuring that government agencies comply with enhanced AI safety and security protocols, protect privacy, advance equity, defend civil rights, and promote innovation while protecting intellectual property rights. They will also play a critical role in developing and enforcing guidelines for the ethical use of AI within federal operations, potentially influencing procurement processes and the deployment of AI in public services. Moreover, as the government seeks to lead by example in the responsible use of AI, these attorneys will be instrumental in setting precedents that could shape future AI governance across all sectors.
Conclusion:
Lawyers already have an ethical duty to stay abreast of technology advancements including ai.
It is not surprising that as AI continues to evolve, legal professionals will play a crucial role in guiding their clients through this complex terrain. But, the Order does not bring anything new to an attorney’s quiver of responsibilities. With or without the Order, attorneys already have the Model Rules of Professional Conduct to guide them on their duties around technology (including AI). The Rules require us to stay current on AI, its constant changes, and how it may impact their clients—whether attorneys are using AI to assist their clients or if their clients or those whom attorneys are advocating against are using AI in their business. Reference Model Rules 1.1, 1.1[8], 1.3, 1.4 & 1.6. So, don't let the Order serve as a starting point. Let it serve as a reminder that we must stay competent in our use and understanding of technology as it applies to our work in the legal arena.
