Decades in Business, Technology and Digital Law

Criticism of Biden’s use of the Defense Production Act to Monitor AI

by | Apr 21, 2024 | Firm News


The use of the Defense Production Act (DPA) by President Biden to regulate artificial intelligence (AI) has attracted considerable criticism, centered mainly on concerns of executive overreach, stifling innovation, and the appropriateness of applying this specific legislation to AI technologies. Here’s a detailed summary of the criticisms:

  1. Executive Overreach: Critics argue that the Biden administration’s use of the DPA to control the development and deployment of AI technologies constitutes executive overreach. The DPA was originally enacted for national defense purposes, particularly to mobilize and expand the production capabilities of American industries during wartime. Opponents contend that using this act to regulate AI stretches its intended purpose and that the administration is applying a 70-year-old law to a modern and rapidly evolving technology sector without adequate justification of a national emergency specifically related to AI​​.
  2. Stifling Innovation: There is a strong belief among technology companies and trade associations that the stringent requirements imposed by the DPA, such as mandatory disclosure of safety test results and other sensitive data to the government, could hinder innovation. They argue that these regulations could slow down the development process, discourage the pursuit of new AI technologies due to increased bureaucratic oversight, and potentially lead to a competitive disadvantage in the global market. The tech industry has suggested that such measures might deter companies from innovating due to fears of revealing trade secrets and internal processes​.
  3. Legal and Industry Pushback: The tech industry, supported by conservative groups and some lawmakers, has signaled the potential for legal challenges against the executive order. They assert that the order represents a misinterpretation of the DPA and could set a concerning precedent for the use of emergency powers in non-emergency situations. This group argues that the administration’s move to regulate AI through the DPA could lead to unnecessary and counterproductive litigation, further complicating the regulatory environment for AI​​.
  4. Concerns Over Privacy and Trade Secrets: There is also apprehension about the impact of these regulations on the protection of intellectual property and trade secrets. Critics express concern that forcing companies to disclose detailed information about their AI systems could expose sensitive commercial information, making them vulnerable to leaks and espionage, especially in a highly competitive international market​.
  5. Political and Ideological Differences: The criticism also reflects broader political and ideological disagreements about the role of government in regulating emerging technologies. Some argue that the Biden administration’s approach reflects a broader tendency towards increased government intervention in private enterprise, which they believe should be curtailed. Opponents from the conservative spectrum argue for a more market-driven approach to AI regulation, which they claim would better foster innovation and maintain the United States’ competitive edge in technology​.

Overall, the criticism of Biden’s use of the DPA to monitor and regulate AI underscores a significant debate over the balance between national security, government oversight, and fostering an environment conducive to technological advancement and innovation.