Over halfway into 2024, generative artificial intelligence tools have achieved escape velocity with the most popular site among the bunch, OpenAI’s Chat-GPT, being visited well over 1 billion times a month consistently since February of 2023 with the number of visits topping out at 1.8 billion for March of 2024.¹

However, the United States finds itself uniquely positioned lacking a comprehensive federal law dedicated to AI governance.² Instead, the nation’s approach is shaped by a series of executive orders that catalyze agency-specific regulations primarily focused on federal utilization of AI.³ Notably, the U.S. has established an AI Safety Institute within the National Institute of Standards and Technology (NIST), inspired by similar endeavors in the United Kingdom.⁴ This institute is backed by over 200 stakeholders who support its critical mission.⁵

Additionally, numerous states have proposed and, in some cases, enacted AI laws.⁶ Moreover, federal agencies, including the Federal Trade Commission, have made it clear their existing legal authorities apply to the use of new technologies, including AI.⁷

The formal inception of artificial intelligence can be traced back to Dartmouth College in the summer of 1956.⁸ It was here that a group of scientists and mathematicians convened to explore the possibility that every aspect of learning or intelligence could be described so precisely that machines could simulate it.⁹ This meeting laid the intellectual foundation for AI as an academic discipline.¹⁰

Fast forward to today, and the U.S.’s approach to regulating AI at a national level is driven by several broad strategic priorities. These include ensuring economic openness and competitiveness in the AI-driven economy, enhancing safety while mitigating risks and potential harms, and maintaining a technological edge over competitors like China.¹¹

Tortoise Media’s June 2023 Global AI Index notably ranked the U.S. first in the world for implementation, innovation, and investment in AI.¹² However, the same report also ranked the U.S. eighth in government strategy for AI, highlighting a gap between private sector innovation and public sector regulation.¹³ This paradox has galvanized American lawmakers to craft legislative and regulatory frameworks aimed at maximizing economic benefits while effectively managing and mitigating associated risks.¹⁴

International AI Governance

As AI penetrates various aspects of life worldwide, different nations have taken divergent regulatory approaches, each tailored to their legal systems, cultures, and traditions.¹⁵

On May 11, 2023, the European Parliament voted in favor of adopting the Artificial Intelligence Act.¹⁶ This piece of legislation, in its current form, seeks to ban or impose strict limitations on certain high-risk applications of AI.¹⁷ In the United Kingdom, the Secretary of State for Science, Innovation, and Technology, Michelle Donelan, released a comprehensive white paper.¹⁸ This document aims to establish the U.K. as a leading “AI superpower” by outlining strategies that balance risk management with a pro-innovation approach.¹⁹ This ambitious plan seeks to create a framework that identifies and addresses the risks associated with AI while fostering innovation and economic growth.²⁰

Across the Atlantic, Canada is advancing its regulatory framework through the proposed Artificial Intelligence and Data Act.²¹ This Act is part of a broader legislative update to the country’s information privacy laws encapsulated in Bill C-27.²² It aims to provide robust guidelines for AI governance within the context of data privacy, catering to the evolving technological landscape.²³ Singapore has also made significant strides with its National AI Strategy, launched in 2019.²⁴ This strategy includes the Model AI Governance Framework, the Implementation and Self-Assessment Guide for Organizations, and a Compendium of Use Cases.²⁵ These documents collectively offer a comprehensive approach to AI regulation that encompasses practical examples and detailed guidelines for organizations.²⁶

Meanwhile, in China, the Cyberspace Administration released the draft Administrative Measures for Generative Artificial Intelligence Services on April 11, 2023.²⁷ These measures are designed to ensure that AI-generated content adheres to societal norms and moral standards, avoids discrimination, maintains accuracy, and respects intellectual property rights.²⁸ This regulatory approach reflects China’s broader strategy to maintain strict control over technological advances while safeguarding social stability.²⁹

The U.S. Approach to AI Regulation

The U.S. has adopted a two-pronged approach to AI regulation: issuing guidelines and standards through federal agencies and promoting self-regulation within the industry.³⁰ The goal of this hybrid approach is to ideally foster innovation while ensuring responsible and ethical AI development and deployment.³¹

National AI Research and Development Strategic Plan

The National AI Research and Development Strategic Plan is a key federal policy document that guides federal investments in AI-related research and development.³² Originally developed in 2016 and most recently updated in May 2023, this plan, crafted by the National Science and Technology Council, outlines several strategic goals.³³ These include promoting the development of responsible, safe, and secure AI systems; improving the understanding of AI workforce needs; expanding public-private partnerships; and fostering international collaboration in AI research.³⁴ The plan emphasizes the importance of long-term and short-term funding strategies for AI research.³⁵ By setting clear goals and priorities, it aims to ensure that federal investments in AI are targeted and effective, driving innovation while addressing societal needs.³⁶

Blueprint for an AI Bill of Rights

In January 2021, the Biden-Harris administration introduced the Blueprint for an AI Bill of Rights.³⁷ This document was not a binding regulation but a “national values statement and toolkit” designed to guide the design and deployment of automated systems.³⁸ It articulates five core principles: ensuring safe and effective systems, protecting against algorithmic discrimination, safeguarding data privacy, providing notice and explanation, and maintaining human alternatives and consideration.³⁹ While the Blueprint did not impose specific legal obligations, it played a crucial role in setting the direction for national AI policy.⁴⁰ By outlining these principles, it provided a framework for further discussions and policy developments at the federal level, emphasizing the importance of ethical considerations in AI deployment.⁴¹

Executive Order 14110

A significant development in U.S. AI governance came in October 2023 with the issuance of Executive Order 14110.⁴² Titled the Executive Order on the Safe, Secure, and Trustworthy Development and Use of AI, this order mandated over 150 actions to be undertaken by various federal agencies.⁴³ Building on the principles outlined in the Blueprint for an AI Bill of Rights, Executive Order 14110 introduced additional priorities, such as promoting innovation and competition, supporting workers, advancing federal government use of AI, and strengthening American leadership in the global AI landscape.⁴⁴ The order’s operational impact was extensive, applying directly to most federal agencies and entities within the AI value chain that do business with the federal government.⁴⁵ It required these agencies to implement a range of measures aimed at ensuring the safe and ethical development and use of AI, thereby reinforcing the federal government’s commitment to responsible AI governance.⁴⁶

Federal Agency Guidelines and Milestones

In the wake of Executive Order 14110, several federal agencies undertook specific initiatives to align with the new directives.

NIST AI Safety Institute

Established in response to the executive order, the NIST AI Safety Institute focuses on addressing the risks associated with generative AI.⁴⁷ Its initiatives include developing methods for authenticating and watermarking AI-generated content and creating benchmarks for evaluating AI capabilities.⁴⁸ These efforts are aimed at enhancing transparency and accountability in AI development and deployment.⁴⁹

Department of State’s Enterprise AI Strategy

This strategy provides department-wide guidance on the responsible and ethical design, development, acquisition, and application of AI.⁵⁰ It outlines measurable goals for integrating AI into the department’s mission, ensuring that AI technologies are used in a manner consistent with ethical standards and national security objectives.⁵¹

Department of Homeland Security’s AI Safety and Security Board

Based on the DHS AI Roadmap, this board is responsible for issuing recommendations and best practices for critical infrastructure owners and operators.⁵² Its goal is to improve the security, resilience, and incident response capabilities of AI systems, thereby safeguarding vital infrastructure against potential AI-related threats.⁵³

Industry Self-Regulation and Federal Collaboration

The U.S. has a long history of favoring self-regulation in industry, and this approach extends to AI governance.⁵⁴ In July 2023, several major AI companies, including Amazon, Google, Meta, and Microsoft, convened at the White House.⁵⁵ They voluntarily pledged their commitment to principles around AI safety, security, and trust.⁵⁶ These principles include ensuring that AI products are safe before introduction to the market and prioritizing investments in cybersecurity and security-risk safeguards.⁵⁷

This commitment to self-regulation reflects the industry’s recognition of the importance of responsible AI development.⁵⁸ It also underscores the U.S. government’s preference for collaborative approaches that involve industry stakeholders in the regulatory process.⁵⁹

Federal AI Governance from Obama to Biden

The foundation of federal AI policy can be traced back to the Obama administration.⁶⁰ In October 2016, the National Science and Technology Council released a public report titled “Preparing for the Future of Artificial Intelligence.”⁶¹ This report summarized the state of AI within the federal government and economy at the time, addressing issues such as fairness, safety, governance, and global security.⁶² It provided nonbinding recommendations for applying AI to address broad social problems, releasing government datasets to promote AI research, and drawing upon technical expertise in regulatory policy for AI-enabled products.⁶³ Building on this foundation, the National Artificial Intelligence Research and Development Strategic Plan was released a day later, identifying priority areas for federally funded AI research.⁶⁴ The plan emphasized investments in areas with strong societal importance, such as public health, urban systems, social welfare, criminal justice, environmental sustainability, and national security.⁶⁵ Updates to the plan in 2019 and 2023 reaffirmed its core strategies and added new priorities focused on expanding public-private partnerships and international collaboration.⁶⁶

Under the Trump administration, significant developments in federal AI governance policy occurred.⁶⁷ President Donald Trump signed Executive Order 13859 in February 2019, launching the American AI Initiative.⁶⁸ This order led to further guidance and technical standards that shaped AI law and policymaking in subsequent years.⁶⁹ Among other actions, the order required the Director of the Office of Management and Budget to issue a guidance memorandum, following public consultation, to inform federal agencies’ approaches to AI.⁷⁰ The OMB guidance emphasized reducing barriers to AI technology while protecting civil liberties, privacy, U.S. values, and national security.⁷¹

The Biden administration has continued to advance AI governance policy significantly.⁷² In October 2022, the Blueprint for an AI Bill of Rights was released, outlining five principles to guide the design and use of automated systems.⁷³ This document emphasized the importance of safety, effectiveness, protection against algorithmic discrimination, data privacy, transparency, and human involvement in decision-making.⁷⁴ Also, in February of 2023, President Biden signed the Executive Order on Further Advancing Racial Equity and Support for Underserved Communities Through The Federal Government, which “directs federal agencies to root out bias in their design and use of new technologies, including AI, and to protect the public from algorithmic discrimination.”⁷⁵ In late May 2023, the Biden administration took several additional steps to further delineate its approach to AI governance.⁷⁶ The White House OSTP issued a revised National AI R&D Strategic Plan to “coordinate and focus federal R&D investments” in AI.⁷⁷ OSTP also issued a Request for Information seeking input on “mitigating AI risks, protecting individuals’ rights and safety, and harnessing AI to improve lives,” with comments due by 7 July.⁷⁸ The administration also issued Executive Order 14110 in October 2023, which mandated a comprehensive approach to AI governance, focusing on safety, security, innovation, worker support, AI bias, civil rights, consumer protection, privacy, federal use of AI, and international leadership.⁷⁹ Following the issuance of EO 14110, the Office of Management and Budget subsequently released a memorandum for public comment on Advancing Governance, Innovation, and Risk Management for Agency Use of Artificial Intelligence.⁸⁰ While taking a risk-based approach to manage AI harms, the draft guidance would direct federal departments and agencies to, among other things, designate a chief AI officer, develop an agency AI strategy and follow certain minimum practices when using rights- and safety-impacting AI.⁸¹

Congressional Engagement and Legislative Proposals

The legislative branch has taken a methodical approach to AI governance, gradually introducing and enacting laws that address various aspects of AI adoption and regulation.⁸² Prior to 2019, congressional focus was primarily on autonomous vehicles and national security concerns related to AI.⁸³ However, recent years have seen increased legislative activity aimed at regulating AI more comprehensively.⁸⁴

In 2017–2019, the 115th Congress passed the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which directed the Department of Defense to undertake various AI-related activities.⁸⁵ This act codified a definition of AI within the U.S. Code and appointed a coordinator to oversee AI activities within the DOD.⁸⁶

This Act also codified (at 10 U.S.C. § 2358) a definition of AI, which is:

1. Any artificial system that performs tasks under varying and unpredictable circumstances without significant human oversight, or that can learn from experience and improve performance when exposed to data sets.⁸⁷

2. An artificial system developed in computer software, physical hardware, or another context that solves tasks requiring human-like perception, cognition, planning, learning, communication, or physical action.⁸⁸

3. An artificial system designed to think or act like a human, including cognitive architectures and neural networks.⁸⁹

4. A set of techniques, including machine learning, that is designed to approximate a cognitive task.⁹⁰

5. An artificial system designed to act rationally, including an intelligent software agent or embodied robot that achieves goals using perception, planning, reasoning, learning, communicating, decision-making, and acting.⁹¹

Further, on January 2021, the National AI Initiative Act became law, marking a significant milestone in federal AI legislation.⁹² Included as part of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, this legislation expanded AI research and development and coordinated AI R&D activities between the defense and intelligence communities and civilian federal agencies.⁹³ The Act also established the National Artificial Intelligence Initiative Office, tasked with overseeing and implementing the U.S. national AI strategy.⁹⁴

Congress has also amended existing laws and policies to better equip them for the AI era.⁹⁵ For example, the FAA Reauthorization Act of 2018 included provisions advising the Federal Aviation Administration to periodically review AI developments in aviation and take necessary steps to address new advancements.⁹⁶

Recent legislative proposals continue to reflect the evolving focus on AI. HR 3044, introduced in May 2023, seeks to amend the Federal Election Campaign Act to provide transparency and accountability around the use of generative AI in political advertisements.⁹⁷ In January 2023, House Resolution 66 was introduced, supporting the need for Congress to focus on AI and ensure its development and deployment align with ethical standards, rights protection, and risk minimization.⁹⁸

Other proposed federal privacy bills address various uses of AI. The Stop Spying Bosses Act aims to prohibit employers from engaging in workplace surveillance using automated decision systems, including AI techniques.⁹⁹ The American Data Privacy and Protection Act includes provisions that require impact assessments for AI systems posing consequential risks to individuals or groups.¹⁰⁰ The Filter Bubble Transparency Act and the SAFE DATA Act similarly address AI accountability and transparency.¹⁰¹

Lastly, the Consumer Online Privacy Rights Act would also regulate “algorithmic decision-making” defined similarly to include computational processes derived from AI.¹⁰² Moving forward, comprehensive federal privacy bills may also become more explicit in their treatment of AI.¹⁰³ Moreover, bills drafted in previous sessions may be reintroduced and further amended to account for the risks/opportunities presented by AI.¹⁰⁴

Congressional hearings on AI have been held to discuss its implications and potential regulations.¹⁰⁵ Committees such as the House Armed Services’ Subcommittee on Cyber, Information Technologies, and Innovation, and the Senate Armed Services Subcommittee on Cybersecurity have explored AI applications within the Department of Defense.¹⁰⁶ Additional hearings by the Senate Judiciary Subcommittee on Privacy, Technology, and the Law, and the Senate Committee on Homeland Security and Governmental Affairs, have focused on AI governance and its broader societal impact.¹⁰⁷

Intellectual Property and Employment Law

The rise of AI presents unique challenges in the realm of intellectual property (IP) law.¹⁰⁸ The U.S. Patent and Trademark Office (USPTO) has actively engaged with stakeholders through its AI/ET Partnership program, fostering dialogues on the intersection of AI and IP.¹⁰⁹ This program hosts listening sessions, public symposia, and provides guidance to ensure AI innovations are adequately protected while promoting inclusivity.¹¹⁰

The U.S. Copyright Office has also been proactive in addressing AI-related copyright issues.¹¹¹ Through its AI initiative launched in 2023, the office has held public listening sessions and webinars, issued a notice of inquiry on copyright and AI, and gathered public input to inform future guidance.¹¹² A notable pending litigation, the New York Times v. OpenAI, centers on whether AI training through article scraping constitutes fair use, a case with profound implications for copyright law and AI.¹¹³

Employment law is another critical area impacted by AI.¹¹⁴ The Equal Opportunity Employment Commission (EEOC) launched the AI and Algorithmic Fairness Initiative to ensure AI compliance with federal civil rights laws.¹¹⁵ This initiative provides public guidance on mitigating discrimination in AI-driven employment decisions and assessing the adverse impacts of automated systems on job applicants and employees.¹¹⁶

Consumer Protection and International Collaboration

The Federal Trade Commission (FTC) has taken a leading role in protecting consumers from harmful AI practices.¹¹⁷ The FTC’s mandate includes preventing unfair or deceptive business practices, and it has been vigilant in bringing enforcement actions against companies that misuse AI.¹¹⁸ The FTC has also sought public comment on proposed rulemaking to prohibit impersonation fraud, recognizing the increasing role of AI in such deceptions.¹¹⁹

In addition to the FTC, several other federal agencies, including the Consumer Financial Protection Bureau (CFPB), EEOC, Department of Health and Human Services (HHS), Department of Justice (DOJ), Department of Education, Department of Homeland Security (DHS), and Department of Labor (DOL), have pledged to uphold principles of fairness and justice as AI becomes more integrated into daily life.¹²⁰

Internationally, the U.S. has engaged in numerous bilateral and multilateral efforts to advance AI policy cooperation.¹²¹ The Trade and Technology Council (TTC) Joint Roadmap for Trustworthy AI and Risk Management, developed in collaboration with the European Union, aims to harmonize AI risk management approaches.¹²² Dialogues with China have also been critical, particularly following a November 2023 meeting between President Joe Biden and General Secretary Xi Jinping, where they announced the creation of a new bilateral channel for AI discussions.¹²³

Anticipating Developments in AI Policy

Looking forward, 2024 promises significant developments in U.S. AI policy.¹²⁴ The Office of Management and Budget (OMB) released its policy on Advancing Governance, Innovation, and Risk Management for Agency Use of AI in March 2024.¹²⁵ This policy will direct federal agencies to advance AI governance and innovation while managing risks, particularly those affecting public rights and safety.¹²⁶

Additionally, in March 2024, the U.S. Department of the Treasury released a report on Managing AI-Specific Risks in the Financial Services Sector.¹²⁷ This report, stemming from Executive Order 14110, identifies significant opportunities and challenges posed by AI to financial sector security and resiliency, providing next steps for addressing operational risks.¹²⁸ By late 2024, the U.S. Copyright Office plans to issue a comprehensive report based on public comments received in response to its 2023 notice of inquiry.¹²⁹ This report will address critical copyright issues related to AI and inform future guidance.¹³⁰

In 2025, President Biden’s fiscal year 2025 budget request includes increased funding to support activities in response to Executive Order 14110.¹³¹ This encompasses increased staffing or new AI offices within the Departments of Labor, Transportation, and Homeland Security, along with additional investments in the NIST AI Safety Institute and the National AI Research Resource within the National Science Foundation.¹³²

Conclusion

In summary, the reactive policy framework guiding U.S. AI governance attempts to epitomizes adaptability and foresight.¹³³ Amid executive orders, federal guidelines, and industry commitments, the U.S. continues to strive for a cohesive and balanced AI regulatory regime, balancing innovation with safety and security.¹³⁴