On February 11, 2019, the White House published a plan for developing and protecting artificial intelligence technologies in the United States, citing economic and national security concerns among other reasons for the action. Coming two years after Beijing’s 2017 announcement that China intends to be the global leader in AI by 2030, President Trump’s Executive Order on Maintaining American Leadership in Artificial Intelligence lays out five principles for AI, including “development of appropriate technical standards and reduc[ing] barriers to the safe testing and deployment of AI technologies in order to enable the creation of new AI-related industries and the adoption of AI by today’s industries.” The Executive Order, which lays out a framework for an “American AI Initiative” (AAII), tasks the White House’s National Science and Technology Council (NSTC) Select Committee on Artificial Intelligence, established in 2018, with identifying federal government agencies to develop and implement the technical standards (so-called “implementing agencies”).
Unpacking the AAII’s technical standards principle suggests two things. First, federal governance of AI under the Trump Administration will favor a policy and standards governance approach over a more onerous command-and-control-type regulatory agency rulemaking approach leading to regulations (which the Trump administration often refers to as “barriers”). Second, no technical standards will be adopted that stand in the way of the development or use of AI technologies at the federal level if they impede economic and national security goals.
So what sort of technical standards might the Select Committee on AI and the implementing agencies come up with? And how might those standards impact government agencies, government contractors, and even private businesses from a legal perspective?
The AAII is short on answers to those questions, and we won’t know more until at least August 2019 when the Secretary of Commerce, through the Director of the National Institute of Standards and Technology (NIST), is required by the AAII to issue a plan “for Federal engagement in the development of technical standards and related tools in support of reliable, robust, and trustworthy systems that use AI technologies.” Even so, it is instructive to review some relevant technical standards and related legal issues in anticipation of what might lie ahead for the United States AI industry.
A survey of technical standards used...
