Insights

On August 21, 2024, the National Institute of Standards and Technology (NIST) released the Second Public Draft of Digital Identity Guidelines (hereinafter, “Draft Guidelines”) for final review. The Draft Guidelines introduce potentially notable requirements for government contractors using artificial intelligence (AI) systems. Among the most significant draft requirements are those related to the disclosure and transparency of AI and machine learning (ML). By doing so, NIST underscores its commitment to fostering secure, trustworthy, and transparent AI, while also addressing broader implications of bias and accountability. For government contractors, the Draft Guidelines are not just a set of recommendations but a blueprint for future AI standards and regulations.

On Thursday, July 18, 2024, Judge Paul Engelmayer, U.S. District Judge for the Southern District of New York, dismissed the bulk of the Securities and Exchange Commission’s (SEC’s) landmark civil securities law claims against SolarWinds and its Chief Information Security Officer (CISO) Timothy Brown.  The Court dismissed all allegations based on SolarWinds’ public disclosures made after SolarWinds became a victim of the well-publicized SUNBURST cybersecurity attack, and also dismissed the SEC’s claims relating to SolarWinds’ internal accounting controls and disclosure controls and procedures.  However, the Court declined to dismiss claims of securities fraud against SolarWinds and its CISO based on SolarWinds’ pre-SUNBURST disclosures, finding that the SEC had properly pleaded that the company’s publicly-posted “Security Statement” was materially false and misleading. 

Universal Music Group, Sony Music, and Warner Music Group., represented by the Recording Industry Association of America (RIAA), have sued online music AI generators, Suno AI (“Suno”) and Udio AI (“Udio”), for alleged copyright infringement, accusing them of replicating their artists’ music using AI technology. The Suno complaint is filed in the U.S. District Court for the District of Massachusetts, and the Udio complaint is filed in the U.S. District Court for the Southern District of New York.  The lawsuits also target Alphabet Inc., Google's parent company. The RIAA is asking for damages amounting to up to $150,000 per infringing song, which could amount to hundreds of millions of dollars. 

On April 10, 2024, the U.S. House of Representatives, Judiciary Committee Subcommittee on Intellectual Property convened Part III to an ongoing discussion and exploration of artificial intelligence (AI) and intellectual property (IP) rights. The session, “Artificial Intelligence and Intellectual Property: Part III - IP Protection for AI-Assisted Inventions and Creative Works,” delved into the nuanced debate over what IP protections should exist for AI-generated or AI-assisted works.

Public companies now have a pathway to request a delay in their cybersecurity incident disclosure to the U.S. Securities and Exchange Commission (“SEC”). On December 6, 2023, the Federal Bureau of Investigation (“FBI”) Cyber Division published the “Cyber Victim Requests to Delay Securities and Exchange Commission Public Disclosure Policy Notice” (the “Policy Notice”) in response to the SEC’s finalized disclosure rules (the “Final Rules”). Published on July 26, 2023, the Final Rules established guidelines around cybersecurity risk management, strategy, governance, and incidents for public companies subject to the Securities Exchange Act of 1934. Among several requirements under the Final Rules, companies are required to disclose cybersecurity incidents within four days of a materiality determination by filing an SEC Form 8-K.

On October 30, 2023, President Biden released an Executive Order (EO) on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (AI).  This landmark EO seeks to advance the safe and secure development and deployment of AI by implementing a society-wide effort across government, the private sector, academia, and civil society to harness “AI for good,” while mitigating its substantial risks.

On Tuesday, September 12, a key subcommittee of the Senate Judiciary Committee held a hearing entitled “Oversight of AI: Legislating on Artificial Intelligence” the day before the Senate’s first AI forum.

On July 25, 2023, the Senate Judiciary Committee held its fifth hearing this year on artificial intelligence (AI). This is the second hearing held by the Subcommittee on Privacy, Technology, and the Law, and it highlighted the “bipartisan unanimity” in regulating AI technology.

In an unconventional opening to the normally staid proceedings of the United States Senate, the voice of Frank Sinatra introduced the July 12, 2023 Senate Judiciary Subcommittee hearing on artificial intelligence (AI) and intellectual property. More accurately, an AI-generated version of Frank Sinatra’s voice sang about regulating AI to the tune of New York, New York, which Senator Chris Coons (D-DE), Chairman of the Senate Judiciary Subcommittee on Intellectual Property, used to illustrate both the possibilities and the risks of the use of AI in creative industries.

On June 18, 2023, the Biden-Harris administration announced the launch of a new “U.S. Cyber Trust Mark” program (hereinafter the “Program”). First proposed by Federal Communication Commission (“FCC”) Chairwoman Jessica Rosenworcel, the Program aims to increase transparency and competition across the smart devices sector and to assist consumers in making informed decisions about the security of the devices they purchase.

On June 21, 2023, Senate Majority Leader Charles (“Chuck”) Schumer (D-NY) released a broad policy framework, the SAFE Innovation Framework for Artificial Intelligence (AI) Policy (“the Framework”), to help guide Congress in developing future AI legislation. The Framework emphasizes the importance of maintaining national security, combatting misinformation, protecting intellectual property, and developing transparency requirements for AI systems developers. While the Framework is Senator Schumer’s work product, he’s already started searching for allies in his own party and across the aisle. Leader Schumer has convened a bipartisan working group that includes Senators Martin Heinrich (D-NM), Michael Rounds (R-SD), and Todd Young (R-IN) to consider future AI legislation. They haven’t specifically endorsed Schumer’s framework, but they’ve committed to working with him on the issue. As they look to put an AI bill together, Schumer’s office will be looking to Senate Committees as a major source for legislative language.  

In a packed Dirksen Senate Office Building committee room, Senator Jon Ossoff (D-GA) presided over a June 13 hearing examining artificial intelligence (AI) and its potentially “profound implications” for civil rights, criminal justice, democratic processes, and privacy rights.

On June 7, 2023, the U.S. Senate Committee on the Judiciary, Subcommittee on Intellectual Property hosted a hearing titled “Artificial Intelligence and Intellectual Property – Part I: Patents, Innovation, and Competition.” It’s clear the Judiciary Committee is going to play an active role in the debate on how to regulate artificial intelligence (AI), with many more hearings to come, as this hearing came shortly after the Judiciary Subcommittee on Privacy, Technology, and the Law held a hearing on “Oversight of A.I.: Rules for Artificial Intelligence.”

On May 16, 2023, the U.S. Senate Committee on the Judiciary, Subcommittee on Privacy, Technology, and the Law held a hearing titled “Oversight of A.I.: Rules for Artificial Intelligence.” This hearing is the first in a series intended to provide a forum for industry leaders to discuss and provide an understanding of the implications of A.I. with an eye toward facilitating the development of appropriate guidelines and regulations.

On March 2, 2023, the Biden Administration released the 35-page National Cybersecurity Strategy (the “Strategy”) with a goal “to secure the full benefits of a safe and secure digital ecosystem for all Americans.”

On March 1, 2023, the Office of the United States Trade Representative (“USTR”) issued the Biden Administration’s 2023 Trade Policy Agenda (“Agenda”) and 2022 Annual Report (“Report”). The Report was submitted to the Congress pursuant to Section 163 of the Trade Act of 1974, as amended. The Report’s 211 pages, plus three annexes, detail the Administration’s ongoing trade priorities and summarize trade activities in 2022, including trade agreements and negotiations, trade enforcement activities, other trade activities, and updates on work at the World Trade Organization.