U.S. Department of Justice Signals Tougher Enforcement Against Artificial Intelligence Crimes

U.S. Deputy Attorney General Lisa Monaco signaled robust future enforcement by the Department of Justice (DOJ) against crimes involving, and aided by, artificial intelligence (AI) in her remarks at Oxford University last week and reiterated shortly thereafter at the Munich Security Conference.

Significantly, Monaco indicated that DOJ would seek stiffer penalties in cases where the threat of misconduct was greater because of the misuse of AI. Monaco compared these stiffer penalties to those imposed against criminal offenses conducted with firearms, noting that criminal offenses conducted using AI in a “malicious way” would be eligible for sentencing enhancement. Monaco also previewed that where the existing sentencing guidelines did not adequately address potential dangers caused by the misuse of AI, DOJ will seek the necessary sentencing reforms.

In the remarks, Monaco also announced an initiative called Justice AI, which will bring together individuals from different backgrounds to provide perspectives on AI and inform a report related to the use of AI in the criminal justice system. Monaco explained that DOJ and other government agencies are working to create guidance to govern the agencies’ use of AI and ensure that new AI systems would be tested for “fairness, accuracy, and safety” prior to use. She also noted DOJ’s current use of AI to, among other things, “help triage and understand” tips submitted to the FBI and to “synthesize huge volumes of evidence collected in some of its most significant cases.”

And yet, Monaco cautioned: “[W]hile the law governing AI will develop ... our existing laws offer a firm foundation. ... Our laws will always apply. And — our enforcement must be robust.”

Monaco discussed several other recent developments related to AI, signaling the DOJ’s focus on tackling AI-related risks:

1. President Joe Biden’s October 2023 executive order on Safe, Secure, and Trustworthy AI, which, among other things, calls on federal agencies to issue standards and guidance that will protect against AI risk. The executive order outlined guiding principles for a unified approach to AI governance, including on safety and security, privacy, equity and civil rights, consumer protection, support for American workers, promotion of innovation and competition, collaboration with international partners, and responsible and effective government use.
2. The 2023 launch of the Disruptive Technology Strike Force, a joint venture by DOJ and the Department of Commerce to investigate and prosecute violations of export laws and protect advanced technologies from adverse use. Monaco announced that the Strike Force would place AI “at the very top of its enforcement priority list.”
3. The appointment of DOJ’s first Chief AI Officer. On February 22, Attorney General Merrick B. Garland announced that Jonathan Mayer had been designated to this role as well as to the role of DOJ’s first Chief Science and Technology Advisor.

As DOJ’s focus on AI increases, and with DOJ indicating that misuse of AI will be an aggravating factor for sentencing, companies should establish guardrails for the use of AI. This may include

• proactively assessing and identifying company and industry risk areas
• building internal frameworks to help ensure the continued and appropriate management and monitoring of AI-related risks
• developing policies, procedures, guidance, and/or training regarding the use of AI applications and the acceptable uses of AI
• designating specific employee(s) to monitor the existing risks and identify upcoming risk areas
• implementing controls to help identify wrongdoing perpetrated with the aid of AI
• swiftly mitigating issues when they arise

For more information on AI developments as well as key business and legal questions and issues that companies and their boards should consider as they navigate the challenges and opportunities presented by artificial intelligence, please click here.