Landmark artificial intelligence legislation advances toward becoming law

The House and Senate have voted to send this year’s National Defense Authorization Act (FY 2021 NDAA) to President Trump, who has threatened to veto the $731.6 billion defense policy legislation.  While there may be a veto of the NDAA, there is still a good chance it becomes law in the coming weeks.

It is noteworthy that the sprawling, 4,517-page defense bill includes the most substantial legislation addressing artificial intelligence (AI) approved by Congress to date, incorporating landmark legislation setting national policy on the emerging technology already shaping and transforming virtually every aspect of military and civilian life.

The bill includes substantial provisions on the policies related to AI and increased funding for several different agencies to expand work on AI issues and the training of an AI-skilled workforce, among other things.    

This publication provides an overview of the key AI initiatives and the funding provided for AI programs. 

Legislative status

Both chambers of Congress passed the NDAA conference report resolving differences between the House and Senate versions of the legislation by bipartisan, veto-proof majorities (84-13 in the Senate, 335-78 in the House). Lawmakers are hoping to see a defense authorization bill enacted for the 60^th consecutive fiscal year.  Even if the bill is vetoed, Congress could override that veto.

Under the Constitution, the president has up to ten days, excluding Sundays, from when the bill was approved in the Senate (Thursday, December 10) to decide whether to sign the bill into law or veto it, which could mean that the bill might be vetoed after members of Congress have left Washington for the Christmas holiday. Leaders in the Democratic-controlled House have vowed to return to DC for a veto override vote before the January 3 swearing-in of the next Congress, but it has not been announced yet what the Republican-controlled Senate plans to do as far as a veto override.

National Artificial Intelligence Initiative Act of 2020 (Division E)

The NDAA includes a 63-page portion of the bill titled Division E, the National Artificial Intelligence Initiative Act of 2020. As explained in the House-Senate Joint Explanatory Statement, the provision was contained only in the version that the House passed earlier this year, but the Senate agreed to include it in the final compromise version with certain changes. Division E draws heavily on legislation introduced earlier this year, (HR 6216), the National Artificial Intelligence Initiative Act of 2020, as well as legislation from 2019, the Artificial Intelligence Initiative Act or AI–IA (S 1558), to establish a coordinated, civilian-led federal initiative to accelerate research and development and encourage investments in trustworthy AI systems for the economic and national security of the United States. The NDAA includes both Department of Defense (DoD) and non-DoD AI provisions.

Among the Division E highlights:

• The bill includes a measure to create a new National Artificial Intelligence Initiative Office under the White House Office of Science and Technology Policy (OSTP) to lead US global leadership in the development and use of trustworthy AI systems and prepare the nation’s workforce for the integration of AI across all sectors of the economy. The office’s mission is to serve as the point of contact for federal AI activities for executive branch departments and agencies, as well as other public and private entities that may be involved in the initiative.
• The conference agreement spells out how the government-wide National AI Initiative will coordinate AI research and development among civilian agencies, the DOD, and the IC. The initiative will functionally comprise two organizations: an Interagency AI Committee co-chaired by the Director of OSTP and representatives from the Departments of Commerce and Energy and the NSF an annual, rotating basis; and a National AI Advisory Committee established by the Secretary of Commerce in consultation with Director of OSTP, the Attorney General, the Director of National Intelligence (DNI), and the Secretaries of Defense, Energy, and State. Members of this Advisory Committee are to be appointed by the Commerce Secretary.
  
• $4.8 billion is authorized through FY 2025 for National Science Foundation (NSF) programs to support research into AI and the training of an AI-skilled workforce.NSF is directed to contract with the National Academies of Sciences, Engineering, and Medicine’s National Research Council to conduct a study of the current and future impact of AI on the US workforce across sectors. Within two years of the NDAA’s approval, a report including findings and recommendations is to be submitted to the Congress.
  • NSF is permitted to establish a network of research institutes that are focused on cross-cutting challenges for AI systems, like trustworthiness or foundational science, or alternatively that are focused on a particular economic or social sector such as health care, education, manufacturing. These institutes are to include a component addressing the ethical and safety implications and are to be funded for a renewable period of five years.
• $1.2 billion is authorized through FY 2025 for Department of Energy AI research, focusing in particular on AI systems that can improve large-scale simulations and the analysis of existing datasets from science and engineering experiments. To support this program, the secretary is expected to make high-performance computing infrastructure available at national laboratories and establish new capabilities necessary to manage the data and computational resources required of AI systems.
• The National Institute of Standards and Technology (NIST), under the Commerce Department, is directed to expand its mission to include advancing collaborative frameworks, standards, guidelines for AI, supporting the development of a risk-mitigation framework for AI systems, and supporting the development of technical standards and guidelines to promote trustworthy AI systems.
• The National Oceanic and Atmospheric Administration (NOAA), also under Commerce, is directed to establish a Center for AI to coordinate research, establish data standards for agency-wide applications, facilitate partnerships between NOAA and other organizations (including institutions of higher education) for research, personnel exchange, and workforce development with respect to AI systems, and preparing NOAA data for use in AI applications.
• Elements of legislation known as the Industries of the Future Act (S 3191) are included, including requiring the Director of OSTP to submit a report to Congress on research and development investments, infrastructure, and workforce development investments of the federal government that enable continued US leadership in industries of the future. The provision will also establish an Industries of the Future Coordination Council composed of chairpersons of AI, advanced manufacturing, and quantum information science, from the National Science and Technology Council.
• Statement of Congressional intent (from the Joint Explanatory Statement):

“The conferees believe that artificial intelligence systems have the potential to transform every sector of the United States economy, boosting productivity, enhancing scientific research, and increasing U.S. competitiveness and that the United States government should use this Initiative to enable the benefits of trustworthy artificial intelligence while preventing the creation and use of artificial intelligence systems that behave in ways that cause harm. The conferees further believe that such harmful artificial intelligence systems may include high-risk systems that lack sufficient robustness to prevent adversarial attacks; high-risk systems that harm the privacy or security of users or the general public; artificial general intelligence systems that become self-aware or uncontrollable; and artificial intelligence systems that unlawfully discriminate against protected classes of persons, including on the basis of sex, race, age, disability, color, creed, national origin, or religion. Finally, the conferees believe that the United States must take a whole of government approach to leadership in trustworthy artificial intelligence, including through coordination between the Department of Defense, the Intelligence Community, and the civilian agencies.”

Among the Department of Defense AI highlights: 

• Bringing responsibility for DoD’s Joint Artificial Intelligence Center (JAIC) up to the level of the Deputy Secretary of Defense, and hence elevate its prominence, or as the explanatory statement states, “ensure data access and visibility for the JAIC.”
• Establishing a Board of Advisors for the JAIC. According to the explanatory statement: “The objective would be to have a standing body over the JAIC that can bring governmental and non-governmental experts together for the purpose of assisting the Department of Defense in correctly integrating and operationalizing artificial intelligence technologies.”
• Establishing acquisition authority for the Director of the JAIC to procure AI systems and technologies for up to $75 million per year.
• Requiring the Pentagon to ensure that the AI technologies it acquires are developed in an ethically and responsibly sourced manner.
• Ensuring that computing resources and data sets are accessible for researchers through partnership with the private sector for the provision of cloud-based computing services.

Other DoD AI provisions:

• Modification of the JAIC biannual report to include information describing how the JAIC’s efforts contribute to the development of AI standards, taking into account developments made in collaboration with agencies inside and outside DOD and the Intelligence Community (IC). JAIC is also required to report on the status of active-duty military personnel assigned to it.
• Application of artificial intelligence to the defense reform pillar of the National Defense Strategy by directing the Secretary of Defense to identify a set of at least five use cases for existing AI-enabled systems to support improved management of enterprise acquisition, personnel, audit, or financial management functions.
• Permitting the Defense Secretary to establish a steering committee on emerging technology and national security threats to develop a strategy for the organizational change, concept and capability development, and technology investments needed to maintain the technological superiority of the US military as outlined in the National Defense Strategy. This committee, which will sunset October 1, 2024, would include senior civilian defense officials as well as the Vice Chairman of the Joint Chiefs of Staff.
• Guidance and direction on use of direct hiring processes for artificial intelligence professionals and other data science and software development personnel.

Learn more about this development by contacting any of the authors.

DLA Piper established a formal Artificial Intelligence Practice in May 2019.  DLA Piper's global Artificial Intelligence practice assists businesses in federal affairs and congress and helps organizations understand the legal and compliance risks arising from the creation and deployment of these emerging and disruptive technologies. Our AI team is composed of true thought leaders in this emerging field who have been recognized as producing some of the leading analyses of these issues. The group spans the globe, with particular depth in the United States, Canada and the United Kingdom.