Artificial Intelligence

On March 28, 2024, the Office of Management and Budget (“OMB”) issued Memorandum M-24-10, Advancing Governance, Innovation, and Risk Management for Agency Use of Artificial Intelligence (the “Memo”). This is the final version of a draft memorandum OMB released for public comment on November 1, 2023. The Memo primarily focuses on agency use of AI and outlines minimum practices for managing risks associated with the use of AI in the federal government. The Memo also provides recommendations for managing AI risks in federal procurement of AI that industry should keep in mind, specifically entities developing AI tools to sell to the federal government.Continue Reading Better Safe Than Sorry: OMB Releases Memorandum on Managing AI Risks in the Federal Government

We have now reached the 180-day mark since the White House Executive Order (EO) on the Safe, Secure and Trustworthy Development of AI and we are seeing a flurry of mandated actions being completed. See here for a summary of recent actions. One of the mandated actions was for the National Institute of Standards and Technology (NIST) to update its January 2023 AI Risk Management Framework (AI RMF 1.0), which it has now done. To this end, NIST released four draft publications intended to help improve the safety, security and trustworthiness of artificial intelligence (AI) systems and launched a challenge series to support development of methods to distinguish between content produced by humans and content produced by AI.Continue Reading NIST Updates AI RMF as Mandated by the White House Executive Order on AI

Colorado is the latest state to introduce a bill focused on consumer protection issues when companies develop AI tools. The bill imposes obligations on developers and deployers of AI systems. Additionally, the bill provides an affirmative defense for a developer or deployer if the developer or deployer of the high-risk system or generative system involved in a potential violation: i) has implemented and maintained a program that complies with a nationally or internationally recognized risk management framework for artificial intelligence systems that the bill or the attorney general designates; and ii) the developer or deployer takes specified measures to discover and correct violations of the bill. The obligations imposed adhere to responsible AI policy, including adopting and documenting policies to avoid algorithmic discrimination, requiring transparency and documentation of the design, data and testing used to build AI tools, avoiding copyright infringement, marking and disclosing to consumers that the synthetic content output was generated by AI tools. The bill also requires disclosure of risks, notifications if the tool makes a consequential decision concerning a consumer and other disclosures.Continue Reading Colorado Introduces an AI Consumer Protection Bill

The USPTO issued guidance on February 6, 2024 that clarified existing rules and policies and discussed how to apply them when AI is used in the drafting of submissions to the Patent Trial and Appeal Board (PTAB) and Trademark Trial and Appeal Board (TTAB). As a follow up, the USPTO has now published additional guidance in the Federal Register on some important issues that patent and trademark professionals, innovators, and entrepreneurs must navigate while using artificial intelligence (AI) in matters before the USPTO. The guidance recognizes that practitioners use AI to prepare and prosecute patent and trademark applications. It reminds individuals involved in proceedings before the USPTO of the pertinent rules and policies, identifies some risks associated with the use of AI, and provides suggestions to mitigate those risks. It states that while the USPTO is committed to maximizing AI’s benefits, the USPTO recognizes the need, through technical mitigations and human governance, to cabin the risks arising from the use of AI in practice before the USPTO. The USPTO has determined that existing rules protect the USPTO’s ecosystem against such potential perils and thus no new rules are currently being proposed.Continue Reading USPTO Issues Additional Guidance on Use of AI Tools in Connection with USPTO Matters

The NY State Bar Association (NYSBA) Task Force on Artificial Intelligence has issued a nearly 80 page report (Report) and recommendations on the legal, social and ethical impact of artificial intelligence (AI) and generative AI on the legal profession. This detailed Report also reviews AI-based software, generative AI technology and other machine learning tools that may enhance the profession, but which also pose risks for individual attorneys’ understanding of new, unfamiliar technology, as well as courts’ concerns about the integrity of the judicial process. It also makes recommendations for NYSBA adoption, including proposed guidelines for responsible AI use. This Report is perhaps the most comprehensive report to date by a state bar association. It is likely this Report will stimulate much discussion.Continue Reading NY State Bar Association Joins Florida and California on AI Ethics Guidance – Suggests Some Surprising Implications

The AI landscape is rapidly changing. To keep you up to date on the fast breaking legal updates in the AI space, we will be providing weekly updates summarizing significant news and legal developments, ranging from AI lawsuits and enforcement actions to legislation and regulations. Below are some highlights of key developments and articles you can view to learn more.Continue Reading AI Legal Updates

The SEC has charged and settled claims with two Investment advisers with making false and misleading statements about their use of artificial intelligence (AI). The SEC found that Delphia (USA) Inc. and Global Predictions Inc. marketed to their clients and prospective clients that they were using AI in certain ways when, in fact, they were not. SEC chair Gensler noted that when new technologies come along, they create buzz from investors and false claims by those purporting to use those new technologies. He admonished investment advisers to not mislead the public by saying they are using an AI model when they are not and that such “AI washing” hurts investors. The companies paid $400,000 in civil penalties.Continue Reading SEC Cracks Down on Over-Hyped AI Claims – Director Says This is Just the Beginning

On January 26, 2024, the Federal Risk and Authorization Management Program (“FedRAMP”) published a draft Emerging Technology Prioritization Framework developed in response to President Biden’s Executive Order 14110 on Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (previously analyzed by our colleague here and discussed in a flash briefing available here). The Executive Order charged FedRAMP with developing a framework to prioritize Emerging Technologies in the FedRAMP authorization process, starting with generative AI.Continue Reading Emerging AI Landscape: FedRAMP Publishes Draft Emerging Technology Prioritization Framework in Response to Executive Order on Artificial Intelligence