Shortly after taking office, President Trump rescinded Biden’s Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence. Biden’s Executive Order sought to regulate the development, deployment, and governance of artificial intelligence within the US, identifying security, privacy and discrimination as particular areas of concern. Trump signed his own executive order titled “Removing Barriers to American Leadership in Artificial Intelligence,” directing his advisers to coordinate with the heads of federal agencies and departments, among others, to develop an “action plan” to “sustain and enhance America’s global AI dominance” within 180 days.

While we wait to see if and how the federal government intends to combat potential algorithmic discrimination and bias in artificial intelligence platforms and systems, a patchwork of state and local laws is emerging. Colorado’s AI Act will soon require developers and deployers of high-risk AI systems to protect against algorithmic discrimination. Similarly, New York City’s Local Law 144 imposes strict requirements on employers that use automated employment decision tools, and Illinois’ H.B. 3773 prohibits employers from using AI to engage in unlawful discrimination in recruitment and other employment decisions and requires employers to notify applicants and employees of the use of AI in employment decisions. While well-intentioned, these regulations come with substantial new, and sometimes vague, obligations for covered employers.

California is likely to add to the patchwork of AI regulation in 2025 in two significant ways. First, California Assemblymember Rebecca Bauer-Kahan, Chair of the Assembly Privacy and Consumer Protection Committee, plans to reintroduce a bill to protect against algorithmic discrimination by imposing extensive risk mitigation measures on covered entities. Second, the California Privacy Protection Agency’s ongoing rulemaking under the California Consumer Privacy Act will likely result in regulations restricting the use of automated decision-making technology by imposing requirements to mitigate algorithmic discrimination.Continue Reading Passage of Reintroduced California AI Bill Would Result In Onerous New Compliance Obligations For Covered Employers

This Baker Mckenzie Handbook covers key data and cyber laws in over 50 jurisdictions, and provides valuable insights into:

  • Foundational data privacy obligations including information and notification requirements, data subject rights, accountability and governance measures, and responsibilities of data controllers and
  • On January 20, 2025, the first day of his second term, President Trump revoked Executive Order 14110 on Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (the “Biden Order”), signed by President Biden in October 2023. In doing so, President Trump fulfilled a campaign pledge to roll back the Biden Order, which the 2024 Republican platform described as a “dangerous” measure. Then on January 23, 2025, President Trump issued his own Executive Order on AI, entitled Removing Barriers to American Leadership in Artificial Intelligence (the “Trump Order”). Here, we examine some of the practical implications of the repeal and replacement of executive orders by Trump and what it means for businesses.

    Overview of the Executive Orders

    Building on the White House’s 2022 Blueprint for an AI Bill of Rights, the Biden Order outlined a sweeping vision for the future of AI within the federal government, including seven high-level objectives: (1) Ensuring the Safety and Security of AI Technology; (2) Promoting Innovation and Competition; (3) Supporting Workers; (4) Advancing Equity and Civil Rights.; (4) Protecting Consumers, Patients, Passengers, and Students; (5) Protecting Privacy; (6) Advancing Federal Government Use of AI; and (7) Strengthening American Leadership Abroad.

    The Biden Order directed various measures across the federal apparatus –imposing 150 distinct requirements on more than 50 federal agencies and other government entities, representing a genuinely whole-of-government response.

    Although the bulk of the Biden Order is addressed to federal agencies, some of its provisions had potentially significant impacts on private sector entities. For example, the Biden Order directed the Commerce Department to require developers to report on the development of higher risk AI systems.  Similarly, the Biden order directed the Commerce Department to establish requirements for domestic Infrastructure as a Service (IaaS) providers to report to the government whenever they contract with foreign parties for the training of large AI models. The Biden Order also open-endedly instructed federal agencies to use existing consumer protection laws to enforce against fraud, unintended bias, discrimination, infringements on privacy, and other harms from AI—a directive various federal regulators actioned under the Biden administration.

    Other than the definition of AI, the Trump Order and Biden Order share no similarities (both Orders point to the AI definition from 15 U.S.C. 9401(3), namely: “a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments”). The Trump Order does not contain specific directives (such as those in the Biden Order), but instead articulates the national AI policy to “sustain and enhance America’s global AI dominance in order to promote human flourishing, economic competitiveness, and national security.” The Trump Order directs a few specific roles within the administration to develop an Artificial Intelligence Action Plan within 180 days (i.e., by July 22, 2025) to achieve the policy objective articulated in the Trump Order. The Trump Order directs these same roles within the administration to review the policies, directives, regulations, orders, and other actions taken pursuant to the Biden Order and to suspend, revise, or rescind any such actions that are inconsistent with the Trump Order’s stated policy. In cases where suspension, revision, or rescission of the prior action cannot be finalized immediately, the heads of agencies are instructed to “to provide all available exemptions” in the interim.

    Practical Impacts

    The practical effect of the revocation of the Biden Order—and the options available under the Trump Order—will vary depending on the measure. Although there are widespread impacts from the revocation of the Biden Order’s mandates across multiple initiatives and institutions, below are those that are expected to have a significant impact on private sector entities engaged in the development or use or AI.

    Reporting requirement for powerful AI models: As notedthe Biden Order directed the Department of Commerce to establish a requirement for developers to provide reports on “dual-use foundation models” (broadly, models that exhibit high levels performance at tasks that pose a serious risk to security, national economic security, national public health or safety). Pursuant to the Biden Order, the Bureau of Industry and Security’s (BIS), a Commerce Department agency, published a proposed rule to establish reporting requirements on the development of advanced AI models and computing clusters under its Defense Production Act authority, but had not issued a final rule prior to the revocation of the Biden Order. It is likely that the new administration will closely scrutinize this reporting requirement and may take action to block the adoption of the final rule if it is found to be inconsistent with the policy statement in the Trump order.Continue Reading AI Tug-of-War: Trump Pulls Back Biden’s AI Plans

    Join our AI and Cyber CLE Series

    If your last name starts with A-G, you are probably well aware that your (recently extended) MCLE compliance deadline is on March 30, 2025. In addition to the general credit requirement, the state of California requires all attorneys to complete:

    • At least four hours of legal ethics
    • At least two hours on competence issues
    • At least two hours on the elimination of bias in the legal profession and society. Of the two hours, at least one hour must focus on implicit bias and the promotion of bias‑reducing strategies.
    • At least one hour on technology 
    • At least one hour on civility

    Continue Reading California’s CLE Compliance Deadline Is Approaching – We can help!

    Special thanks to co-presenters Teresa Michaud and Bradford Newman.

    California’s CLE Compliance Deadline Is Approaching…    
    We can help!

    If your last name starts with H-M, you are probably well aware that your CLE compliance deadline is right around the corner – February 1, 2024. In addition to the general credit requirement, the state of California requires all attorneys to complete:

    • At least four hours of legal ethics
    • At least one hour on competence issues
    • At least two hours on the elimination of bias in the legal profession and society. Of the two hours, at least one hour must focus on implicit bias and the promotion of bias-reducing strategies.

    Our lawyers will offer three virtual sessions, focused on key considerations for AI development and utilization, to help you meet your CLE requirements. These sessions will also offer CLE credit in the states of Illinois, Texas, and New York. Participants requesting CLE for other states will receive uniform CLE certificates. 

    Please register and let us know which individual session(s) you plan to attend. We look forward to your participation!


    Promoting Unity: Overcoming the Risks of Bias and Prejudice in the Workplace

    Tuesday, January 16, 2024 | 1:00 – 2:00 pm Pacific
    1 hour Elimination of Bias credit (pending approval)Continue Reading California AI CLE Series

    Special thanks to our Baker McKenzie speakers Pamela Church, Teisha Johnson, Cyrus Vance, Elizabeth Roper, Laura Estrada Vasquez, Joshua Wolkoff and Industry Experts, Alexandra Lopez, Privacy Counsel, Calix, Una Kang, VP and Associate General Counsel, Wolters Kluwer, and Pamela Weinstock, Managing Counsel, Intellectual Property, Tiffany & Co.

    On October 30, 2023, President Biden issued a 63-page Executive Order to define the trajectory of artificial intelligence adoption, governance and usage within the United States government. The Executive Order outlines eight guiding principles and priorities for US federal agencies to adhere to as they adopt, govern and use AI. While safety and security are predictably high on the list, so too is a desire to make America a leader in the AI industry including AI development by the federal government. While executive orders are not a statute or regulation and do not require confirmation by Congress, they are binding and can have the force of law, usually based on existing statutory powers.

    Instruction to Federal Agencies and Impact on Non-Governmental Entities

    The Order directs a majority of federal agencies to address AI’s specific implications for their sectors, setting varied timelines ranging from 30 to 365 days for each applicable agency to implement specific requirements set forth in the Order.

    The actions required of the federal agencies will impact non-government entities in a number of ways, because agencies will seek to impose contractual obligations to implement provisions of the Order or invoke statutory powers under the Defense Production Act for the national defense and the protection of critical infrastructure, including: (i) introducing reporting and other obligations for technology providers (both foundational model providers and IaaS providers); (ii) adding requirements for entities that work with the federal government in a contracting capacity; and (iii) influencing overall AI policy development.Continue Reading Biden’s Wide-Ranging Executive Order on Artificial Intelligence Sets Stage For Regulation, Investment, Oversight and Accountability

    Recent and rapid artificial intelligence developments have captured public attention and much has been discussed around how organizations will need to prepare.

    From an employment standpoint, the increasingly sophisticated potential for AI applications spans the entire employee lifecycle, from recruitment to onboarding, training and more.  
     
    In the second report in our Workforce Redesign: Outlooks

    Presented by the Institute for Technology Law & Policy at Georgetown Law in collaboration with Baker McKenzie.

    On November 8, join thought leaders from government, the judiciary, academia, and private practice for this timely gathering on the Georgetown Law campus in Washington, DC. Laws and policy surrounding the protection of trade secrets are changing as technology

    New York in the summer: warm days, Shakespeare in the Park, visits to the beach, and the end of the New York State legislative session–which often means a few surprises for New York employers. This summer, not only do employers have to contend with New York’s amended WARN Act regulations and the enforcement of New York City’s Automated Employment Decision Tool law (both now effective), they also have to keep a close eye on four New York State bills that have cleared both houses of the state legislature and could be signed by Governor Hochul–including one that would arguably be the nation’s broadest ban on employee noncompete agreements. We highlight two changes–and four that could be coming down the pike–New York employers should pay close attention to this summer.

    Two to know

    1. Amendments to New York’s WARN Act regulations now in effect.

    New York State’s proposed amendments to its Worker Adjustment and Retraining Notification (WARN) Act regulations were adopted on June 21 and are now in effect. The definition of a covered employer has been expanded, remote employees must now be included in the threshold count, certain notices must include more information or be provided electronically, and exceptions for providing notice have changed (among other modifications). In addition, there’s a new York State Department of Labor WARN portal for employers to use for “a more streamlined user experience.” Want the details on the WARN Act regulation changes and some helpful tips for employers? See our prior blog here.

    2. Enforcement of New York City’s Automated Employment Decision Tool law began July 5.

    New York City’s Local Law 144 prohibits employers and employment agencies from using an automated employment decision tool to substantially assist certain employment decisions unless the tool has been subject to a bias audit within one year of the use of the tool, information about the bias audit is publicly available, and certain notices have been provided to employees or job candidates. Violations of the provisions of the law are subject to a civil penalty. Enforcement of the law began July 5, and employers need to be diligent. For those who haven’t done so yet, the first (and immediate) step is to take inventory of HR tech tools. Legal should partner with HR and IT to determine whether the company uses automated employment decision tools to make any employment decisions in a manner that triggers the law. See our prior blog here for additional steps to take, as well as further details on the law, penalties, and some practical tips for employers.

    Four to watch

    1. New York could become the fifth state to ban employee noncompetes.

    On June 21, the New York State Assembly passed S3100 (already passed by the New York State Senate), which will be the most restrictive state-level ban on employers’ use of noncompetes to date if signed into law by Governor Hochul.

    Under the bill, every contract that restrains anyone from engaging in a lawful profession, trade or business of any kind is void to the extent of such restraint.

    The ban: The bill does not permit employers (or their agents) to “seek, require, demand, or accept a non-compete agreement” from a “covered individual.”

    • A “non-compete agreement” is any agreement (or clause in an agreement) between an employer and a “covered individual” that prohibits or restricts the individual from obtaining employment after the conclusion of employment with the employer. 
    • A “covered individual” is “any other person” who performs work or services for another person on such terms and conditions that puts them in a position of economic dependence on and under an obligation to perform duties for that other person–regardless of whether they are employed under a contract of employment.

    Continue Reading New York Employer Summer Roundup: Two to Know and Four to Watch