Technology, artificial intelligence in focus for the Biden Administration and the 117th Congress

Seen through the lens of competition with China

Washington, DC Capitol

AI Outlook

AI Outlook

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As the new administration staffs up and Capitol Hill lawmakers begin to contemplate post-pandemic priorities, countering China’s advances in artificial intelligence and other disruptive technologies has emerged as a major driving force for US policymakers. This alert provides a summary of expected new AI-related legislation, an overview of a recent report by the National Security Commission on Artificial Intelligence,  highlights of the Biden Administration’s approach to technology/AI as well as the key AI-related policymakers in the Administration and in Congress. 

Three developments in the last month signal a focused mindset of policymakers in Washington, DC to counter China on technology:

  • In a February 23 press conference, new Senate Majority Leader Chuck Schumer announced that he plans to push for a comprehensive bill, in coordination with relevant committees,  with the goal to put in place policies to out-compete China and create new American jobs. Schumer announced, “I want this bill to address America’s short-term and long-term plan to protect our semiconductor supply chain and keep us No. 1 in AI, 5G, quantum computing, biomedical research, storage, all of these things are part of the bill.”
  • In its final report to Congress and the president released on March 1, the 15-member National Security Commission on Artificial Intelligence (NSCAI) – headed by former Google CEO Eric Schmidt – declared “China possesses the might, talent, and ambition to surpass the United States as the world’s leader in AI in the next decade if current trends do not change.”
  • The Biden Administration is expected to go forward with a sweeping rule that would enable the Commerce Department to ban technology-related business transactions determined to pose a national security threat, similar to actions taken by the previous administration.

Washington sees maintaining and extending US leadership in technological innovation as a vital national security imperative, both:

  • In the strict sense of prevailing in the rising AI/digital technology race with China, Russia and other international rivals
  • And in the broader sense of ensuring a dominant American position in manufacturing, international trade, and research and development for the 21st-century civilian consumer economy.

While a strategic imperative to move fast and out-compete China is prevalent in the highest levels of the federal government, progressive elements of the Democratic majorities in the Congress may advocate for cautionary breaks and regulatory guardrails to this rapid technology development, such as AI algorithmic impact assessments, audits and penalties for developers of AI applications.  Europe is currently considering some of the strictest AI regulations in the world today, and US policymakers will likely face pressure across the Atlantic to issue further guidance or even consider targeted, agency-specific regulations of high-risk AI applications.        

AI and the great power competition

 The March 1 NSCAI final report could be seen by some as a “wake-up call”  since the report highlights that other nations are not standing idly by and thus some experts believe the Defense Department must move beyond the legacy systems that have defined military planning for decades. The findings, quarterly recommendations and stark conclusions of the report have reverberated in high-level defense and foreign policy circles and sounded the alarm to members of congress, staff and the general public. 

Eric Schmidt, Chairman of the NSCAI, declared the AI competition with China is a “national emergency” and a “threat to our nation unless we get our act together with respect to focusing on AI in the federal government and international security.”

The 15-member Commission – composed of technologists, business executives, academic leaders and national security professionals – was created under the fiscal year 2019 National Defense Authorization Act (NDAA) “to consider the methods and means necessary to advance the development of artificial intelligence, machine learning, and associated technologies to comprehensively address the national security and defense needs of the United States.”

Among the NSCAI report’s takeaway headlines:

  • China could soon replace the US as the world’s “AI superpower,” with serious long-term military implications.
  • The US “government is not organizing and investing to win the technology competition against a committed competitor.”
  • America is not “prepared to defend against AI-enabled threats and rapidly adapt AI applications for national security purposes.”
  • The US should resist calls for an international convention on the prohibition on AI-enabled and autonomous weapons systems because “commitments from states such as Russia and China likely would be empty ones.”

The Commissioners focused on four pillars for immediate action:

  • Leadership: Set up a Technology Competitiveness Council (TCC) at the White House led by the vice president and organize the Defense Department and the intelligence community to win the technology competition.
  • Talent: Win the international talent competition by improving STEM education, prioritizing digital engineering and improving the system for admitting and retaining highly skilled immigrants.
  • Hardware: Revitalize domestic semiconductor manufacturing and “ensure we are two generations ahead of China.”
  • Innovation: Establish a national AI research infrastructure and double federal investments in AI R&D to reach $32 billion annually by 2026, of which the Pentagon should boost its artificial intelligence research and development to $8 billion a year by 2025, up from about $1.5 billion now. 

Many of these recommendations, which span the entire federal government, have a good shot at serious legislative consideration, with the fiscal year 2022 National Defense Authorization Act being the most likely vehicle to carry many of the policy proposals.

 

New administration, similar competitive tech concerns about China

While President Biden has used his executive powers to reverse a host of policies enacted by his predecessor, one area of potential continuity from the Trump era is an aggressive posture towards China.

  • The Biden administration is generally expected to go forward with a sweeping rule that would enable the Commerce Department to ban technology-related business transactions determined to pose a national security threat.
  • The rule cites six “foreign adversaries,” but the People’s Republic is clearly the most technologically advanced and commercially assertive of the targeted nations.
  • Some US companies in industries such as technology, telecommunications and finance object to the rule, which they say could harm innovation and competitiveness.
  • The rule was originally proposed in November 2019, designed to carry out an executive order signed by former President Trump. It was published in the Federal Register the day before Biden’s inauguration and still has the status of “interim final rule,” with an effective date of March 22. Public comments will continue to be accepted until then.

Other Biden Administration technology/AI initiatives and personnel

The pending rule is part of a broader effort to secure US supply chains, bolster US manufacturing and enhance the role of science, particularly at a time when a global shortage of semiconductor chips is causing severe production cutbacks in automotive and consumer electronics manufacturing.

  • On February 24, the president signed an Executive Order on America’s Supply Chains.
  • In his January 25 remarks at the signing of an executive order on strengthening American manufacturing, the president said, “We’ll also make historic investments in research and development – hundreds of billions of dollars – to sharpen America’s innovative edge in markets where global leadership is up for grabs – markets like battery technology, artificial intelligence, biotechnology, clean energy.”
  • On January 27, President Biden signed an Executive Order on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking. The Order would mandate creation of an interagency Task Force on Scientific Integrity within the National Science and Technology Council (NSTC). Among its many tasks, the task force will be charged with identifying “promising opportunities to address gaps in current scientific-integrity policies related to emerging technologies, such as artificial intelligence and machine-learning.”

President Biden has announced a number of appointments and nominations of officials who will take leading roles on AI and related issues and has raised the profile of key posts with jurisdiction over cyber and technology issues.

  • Office of Science and Technology Policy (OSTP) Director Eric Lander. The post has been elevated to a Cabinet-level position and will require Senate confirmation.
  • OSTP Science and Society Deputy Director Alondra Nelson.
  • President’s Council of Advisors on Science and Technology Co-Chairs Frances H. Arnold and Maria Zuber.
  • Deputy National Security Advisor for Cyber and Emerging Technology Anne Neuberger. This is a newly established role on the National Security Council (NSC).
  • Senior Director for Technology and National Security, NSC, Tarun Chhabra.
  • Senior Director for Cyber, NSC, Michael Sulmeyer.

In his first major speech as America’s top diplomat, Secretary of State Anthony Blinken said:

  • “We will secure our leadership in technology. A global technology revolution is now underway. The world’s leading powers are racing to develop and deploy new technologies like artificial intelligence and quantum computing that could shape everything about our lives, from where we get energy, to how we do our jobs, to how wars are fought.”

Advancing US tech to counter China a big priority on Capitol Hill

Senator Schumer, leader of the newly minted Democratic majority in the Senate, has “directed the chairs and members of our relevant committees to start drafting a legislative package to out-compete China and create new American jobs.”

  • In his February 23 press conference, Schumer said, “I want this bill to address America’s short-term and long-term plan to protect our semiconductor supply chain and keep us No. 1 in AI, 5G, quantum computing, biomedical research, storage, all of these things are part of the bill.”
  • The package may be modeled on the bicameral and bipartisan Endless Frontier Act, which Schumer and Senator Todd Young (R-IN) introduced last year but was not enacted. That legislation proposed expanding the National Science Foundation (NSF) and renaming it the National Science and Technology Foundation (NTSF). Additionally, the previous bill would have established a Technology Directorate within NTSF that would receive $100 billion over five years in research in AI and machine learning; high-performance computing; robotics, automation and advanced manufacturing; and other key technologies. Companion legislation was introduced in the House by Reps. Ro Khanna (D-CA) and Mike Gallagher (R-WI).
  • The emerging legislation is also expected to be informed by the American LEADS (Labor, Economic competitiveness, Alliances, Democracy and Security) Act, introduced at the tail end of the 116th Congress by a group of Senate Democrats, many of whom now chair influential committees. That legislation seeks to counter China on the national and economic security fronts.

Congress laid some of the groundwork for implementing a more comprehensive national AI strategy with the passage on New Year’s Day (over Trump’s veto) of the FY 2021 NDAA, which incorporated the National AI Initiative Act. The White House on January 12 fulfilled the law’s requirement to establish the National AI Initiative Office, responsible for coordinating AI research and policymaking across government, industry and academia.

The National AI Initiative Act, also known as Division E of the NDAA, was the most significant AI legislation to date to be enacted by Congress and will serve as the foundation for non-defense AI policy for the federal government in the years ahead.  Division E established 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 legislation authorizes policies and significant funding for the National Science Foundation (NSF), National Institute of Standards and Technology (NIST) and Department of Energy.

In the 117th congress, a shift of focus will turn to monitoring implementation of this legislation and appropriating additional dollars to resource the initiative.  Democratic majorities in both the House and Senate can be expected to apply a greater amount of attention and scrutiny over AI applications and their outcomes.  Industry should expect increased policy and regulatory focus on ensuring accountability of AI through impact assessments and audits of AI algorithms.   In her confirmation hearing, newly sworn in Commerce Secretary Gina Raimondo pledged to work with Congress on a bipartisan basis as part of the Advisory Committee on AI required by the defense policy bill. Raimondo’s department has jurisdiction over key science policy bureaus, including NIST.

The House Armed Services Committee has established a new Subcommittee on Cyber, Innovative Technologies, and Information Systems, with Representative James Langevin (D-RI) as chair and House AI Caucus member Elise Stefanik (R-NY) as ranking member. AI Caucus member and Endless Frontiers Act sponsor Representative Ro Khanna (D-CA) is also on this subcommittee.

Additional key congressional players on AI issues

Senator Rob Portman (R-OH), co-founder and co-chair of the Senate AI Caucus, announced that his current term will be his last and he will not seek re-election in 2022. But he has demonstrated that he will continue to be a leading voice on AI issues over the next two years, including in his capacity as ranking member of the Homeland Security and Governmental Affairs Committee which, among other responsibilities, has authority to investigate the efficiency, economy and effectiveness of all agencies and departments of the government.

Senator Martin Heinrich (D-NM), fellow co-chair and co-founder of the AI Caucus, is moving to the Appropriations Committee. He authored the Senate’s Artificial Intelligence Initiative Act in 2019.

Many of the provisions included in that legislation became law via the FY21 NDAA being enacted on New Year’s Day 2021.  Senator Heinrich is likely to continue pushing for responsible and trustworthy AI funding and policies for government agencies while providing congressional oversight of the newly created White House National AI Initiative Office.

Representative Jerry McNerney (D-CA) continues as the Democratic Co-Chair of the House AI Caucus. He is particularly passionate and focused on AI workforce and research issues and is a member of the House Science Committee.

Representative Anthony Gonzalez (R-OH) will take over as the Republican co-chair of the House AI Caucus. Gonzalez, now in his second term, was not a member of the AI Caucus previously, but he was part of a bipartisan group of House members who called on NIST to develop a framework on strategies, guidelines and best practices for AI that will bolster innovation and ethical practices in developing and implementing artificial intelligence across the US.  He is also interested in AI impacts on the workforce as a representative from the rustbelt. 

Current AI Caucus membership in the 117th Congress:

Senate AI Caucus

CO-CHAIRS

Martin Heinrich (D-NM)

Rob Portman (R-OH)

MEMBERS

Brian Schatz (D-HI)

Joni Ernst (R-IA)

Gary Peters (D-MI)

Mike Rounds (R-SD)

Maggie Hassan (D-NH)

 

House AI Caucus

CO-CHAIRS

Jerry McNerney (D-CA-09)

Anthony Gonzalez (R-OH-16)

MEMBERS

Don Beyer (D-VA-08)

GK Butterfield (D-NC-01)

André Carson (D-IN-07)

Emanuel Cleaver II (D-MO-05)

Suzan DelBene (D-WA-01)

Mark DeSaulnier (D-MA-11)

Nanette Diaz Barragán (D-CA-44)

Debbie Dingell (D-MI-12)

Anna G. Eshoo (D-CA-18)

Bill Foster (D-IL-11)

Josh Gottheimer (D-NJ-05)

Pramila Jayapal (D-WA-07)

Henry C. "Hank" Johnson (D-GA-04)

Ro Khanna (D-CA-17)

Derek Kilmer (D-WA-06)

Brenda Lawrence (D-MI-14)

Ted Lieu (D-CA-33)

Michael McCaul (R-TX-10)

Bobby Rush (D-IL-01)

Brad Sherman (D-CA-30)

Darren Soto (D-FL-09)

Elise Stefanik (R-NY-21)

Steve Stivers (R-OH-15)

Marc Veasey (D-TX-33)

 

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.