House Oversight Subcommittee Slams DPA Abuse in AI Executive Order
March 21, 2024 | Yesterday, the Subcommittee on Cybersecurity, Information Technology, and Government Innovation held a hearing entitled “White House Overreach on AI.” Led by Chairwoman Nancy Mace, the hearing covered how White House Executive Order on AI abuses the Defense Production Act of 1950 (“DPA”) and improperly bypasses the legislative role of Congress, creating miles of red tape and new far-reaching regulatory requirements for AI via executive fiat.
AFP Foundation submitted a letter for the record explaining how the Order is incongruent with the purpose of the DPA, and how the DPA should be reformed to prevent future abuse:
If such broad and significant oversight of AI development is warranted, then it is Congress’s responsibility to do so through legislation. Biden treating AI as an emergency fabricates a never-ending crisis that transfers to the president major powers over the economy that are constitutionally reserved for Congress.
Chairwoman Nancy Mace’s opening statement expressed concern with this novel use of the DPA:
[The Executive Order] invokes the emergency powers of the Defense Production Act or DPA to require AI developers to notify the government if they are even considering developing powerful new AI systems. It also mandates they regularly hand over sensitive, proprietary data like testing results to the Commerce Department.
What does this have to do with defense production? The DPA gives the President extraordinary powers to ensure the supply of critical goods in time of war or national emergency.
But we’re not at war. And if artificial intelligence is an emergency, it’s not a temporary one—AI is not going away anytime soon. So, the new executive powers this EO asserts have no logical sunset.
This new reporting regime “lacks legal authority” according to the attorneys general of twenty states—including my own state of South Carolina. These AGs last month wrote a letter to the Commerce Secretary stating that the DPA “allows for the federal government to promote and prioritize production, not to gatekeep and regulate emerging technologies.”
Rep. Mace opens second hearing on the White House’s overreach on AI.
— Oversight Committee (@GOPoversight) March 21, 2024
“Last October 30th, the White House released a monumentally lengthy executive order on artificial intelligence—the longest EO ever issued.
“And the EO isn’t just long. It’s broad: It corrals dozens of federal… pic.twitter.com/FbPTC8kL4M
Adam Thierer, Resident Senior Fellow on Technology and Innovation at the R Street Institute:
This brings me to the Biden administration’s October executive order.11 This wide-ranging 100- plus page directive has been praised by some as a logical response to congressional inaction on AI, but many others have rightly noted that it stretches executive authority over emerging technology well beyond statutory limits and raises the danger of overregulation.12 For example, the order flips the Defense Production Act on its head and converts a 1950s law meant to encourage production, into an expansive regulatory edict intended to curtail some forms of algorithmic innovation.
Jennifer Huddleston, Technology Policy Research Fellow at the Cato Institute:
The most notable example of this overreach in the AI EO is the use of the Defense Production Act (DPA) to justify its provisions. Originally designed to provide the executive with authority to meet a national security crisis, the AI EO invokes the Defense Production Act not to respond to such a crisis, but rather to require innovators of AI products deemed high risk that they both notify the government and submit to government run “red teaming” regarding the potential risks.6 While it’s possible Congress might develop a similar regime or requirement with the accompanying consequences of such a permissioned approach, to do so via an executive order falls well beyond the typical uses of the DPA. As we have seen in the past, once such authority is given to the executive it is often hard to restrain it or return the appropriate authority to Congress.
Neil Chilson, Head of AI Policy at the Abundance Institute:
The DPA simply cannot shortcut the constitutionally established method of democratic lawmaking in the US. As we’ve heard Congress is actively considering 28 AI related bills the DPA does not empower the president to skip ahead of Congress on this.
Congress intended for emergency delegations of authority to the president to be temporary to respond to emergent crises that require swift action. However, presidents are increasingly using emergency powers to address long-standing policy failures, impose policy preferences, and circumvent our system of checks and balances. The DPA is scheduled to expire in 2025 unless reauthorized. Without significant reform that tightens definitions, gives Congress a more prominent role in the process, and provides for stronger transparency and oversight, Congress should consider allowing the DPA to lapse.
