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AI Update: NDAA Renewal Addresses Uses and Implications of AI in National Security Context

Last month, President Trump signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019(“NDAA” or the “Act”), which, among other things, includes provisions addressing the development and use of artificial intelligence (“AI”) in the context of national security and defense.

Section 2238 of the NDAA charges the U.S. Department of Defense (“DoD” or the “Department”) with developing, maturing, and transitioning AI technologies into operational use.  Within one year of the Act’s enactment, the Secretary of Defense must designate a senior official within the Department to coordinate activities relating to the development and demonstration of AI and machine learning.  Responsibilities of this senior official include the following:

  • Developing a detailed strategic plan for the development and adoption of AI technologies;
  • Engaging with representatives from the defense industry and other private companies, research universities, and unaffiliated nonprofit research institutions;
  • Supporting the development of capabilities that assess and address AI-based threats;
  • Developing classification guidance for all AI-related activities within the Department; and
  • Working with appropriate officials to develop appropriate ethical, legal, and other policies governing the development and use of AI-enabled systems and technologies in operational situations.

Within one year of the Act’s enactment, the designated senior official also must complete a study on past and current advances in AI and the future of the discipline, including the methods and means necessary to further the technology to address national security needs.

Separately, in Section 1051, the NDAA established a new independent commission in the executive branch to review advances in AI, machine learning, and related technologies.  The National Security Commission on Artificial Intelligence (the “Commission”) will be comprised of the Secretaries of Commerce and Defense and senior leaders on relevant congressional committees.  The Act directs the Commission to undertake a comprehensive review of the methods and means necessary to advance the development of AI in the national security context.  This review will consider a number of issues, including AI’s effect on American labor and economic competitiveness, foreign investment, workforce and education incentives, data standards, and military efforts, as well as related ethical considerations.  The Commission’s findings and recommendations will be produced in a report within 180 days of the Act’s enactment, with an annual update thereafter.  Under the statute, the Commission is scheduled to terminate on October 1, 2020.

© 2023 Covington & Burling LLPNational Law Review, Volume VIII, Number 268

About this Author

Susan B. Cassidy, Government Contracts Attorney, Covington Burling, Law Firm

Susan Cassidy advises clients on the complex rules and regulations imposed on government contractors, with a special emphasis on the defense and intelligence sectors. She combines a sophisticated knowledge of the FAR and DFARS with the practical insight gained from senior in-house positions at both dedicated defense and commercial item contractors.

Ms. Cassidy conducts internal investigations for clients on wide array of government contracts and national security compliance issues. She regularly advises on FAR mandatory disclosure obligations and represents...

Brandon Johnson, Covington, Regulatory and public policy lawyer

Brandon Johnson advises clients in the television, telecommunications, and technology industries on a wide range of regulatory and privacy issues.

Representative Matters

  • Assists broadcast owners in retransmission consent and network affiliation negotiations.
  • Represented a large Spanish-language media company in rulemaking proceedings before the Federal Communications Commission.
  • Advised television clients in the preparation of channel sharing agreements...
Mengxi Zhu, Covington, Venture capital asset lawyer

Mengxi Zhu advises private and public companies on venture capital financings, mergers and acquisitions, joint ventures, strategic investments, and other corporate transactions. She also represents emerging companies in general corporate matters, including entity formation, corporate governance, and securities law compliance.

Ms. Zhu has broad experience in economics, finance, data analysis, and programming. She leverages this experience and a deep understanding of the technology industry in her practice

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