The AI Executive Order and Considerations for Federal Privacy Policy

The AI Executive Order and Considerations for Federal Privacy Policy

INSIGHTi

The AI Executive Order and Considerations
for Federal Privacy Policy
January 25, 2024
On October 30, 2023, President Biden issued Executive Order (E.O.) 14110 on Safe, Secure, and
Trustworthy Development and Use of Artificial Intelligence. This E.O. advances a coordinated approach
to the responsible development and use of artificial intelligence (AI) and directs agencies to mitigate
privacy risks and bias potentially exacerbated by AI, including “by AI’s facilitation of the collection or
use of information about individuals, or the making of inferences about individuals.”
Since the enactment of the Privacy Act of 1974, the federal government has grappled with how to
preserve individual privacy while also leveraging the utility of computerized information. As information
resources management transitioned from primarily paper-based materials to digital systems and formats,
Congress and the Office of Management and Budget (OMB) have continued to update agency roles,
responsibilities, and governance mechanisms with regard to management of agency information.
With expanding use of AI, Congress and the executive branch may explore whether agency roles and
responsibilities relating to privacy have kept pace with emerging technologies and information sources.
The E.O. describes possible impacts to individual civil liberties and existing privacy protections:
“Artificial Intelligence is making it easier to extract, re-identify, link, infer, and act on sensitive
information about people’s identities, locations, habits, and desires. Artificial Intelligence’s capabilities in
these areas can increase the risk that personal data could be exploited and exposed.” However, advances
in privacy-enhancing technologies (PETs) may allow federal agencies to “derive value from, and enable
an analysis of, data to drive innovation while also providing privacy and security.”
E.O. 14110 represents the continuing discussion concerning federal use of information on individuals and
builds upon requirements in the Open, Public, Electronic, and Necessary Government Data Act (OPEN
Government Data Act) and the E-Government Act of 2002. The E.O. focuses on three priorities relating to
privacy:
1. Identifying and evaluating agency use of commercially available information (CAI);
2. Revising existing privacy requirements for the adoption of AI, including privacy impact
assessments (PIAs); and
3. Encouraging agency use of PETs.
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Commercially Available Information
Under the Privacy Act, protections regarding the federal use (and recourse for misuse) of individually
identifying information center around the information being considered agency records that the agency
maintains. However, private entities are not considered “agencies.” Observers have questioned what role
private entities, such as commercial data brokers, may play in supplementing or comingling with
government information and what recourse individuals have in the event of inappropriate use or quality of
this third-party information.
The E.O. requires the OMB director to evaluate and identify CAI procured by agencies. CAI is defined as
“any information or data about an individual or group of individuals, including an individual’s or group of
individuals’ device or location, that is made available or obtainable and sold, leased, or licensed to the
general public or to governmental or non-governmental entities.” The E.O. further requires the OMB
director to evaluate agency standards and procedures associated with CAI throughout its life cycle, from
collection and use of the information to disposition. It is unclear whether this evaluation will require
disclosure of the CAI’s provenance or origin.
Revising Existing Privacy Requirements
Section 208 of the E-Government Act of 2002 requires PIAs be conducted when agencies develop or
procure information technology that collects, maintains, or disseminates information that is in an
identifiable form. A PIA includes elements such as what and why the information is being collected, how
the information will be secured and shared, and what notice or opportunities for consent are provided to
individuals regarding the information collection and sharing. OMB guidance concerning PIAs is largely
contained in OMB Circular No. A-130, updated in 2016, and Memorandum M-03-22, published in 2003.
Generally, PIAs are required to be performed and updated as necessary where a system change creates
new privacy risks. However, agency officials may not share a common understanding of what changes
would create new risks, such as the creation or acquisition of a new information system or the updating of
an existing system with new information that may change system outputs. Although OMB directs
agencies to “conduct and draft a PIA with sufficient clarity and specificity to demonstrate that the agency
fully considered privacy and incorporated appropriate privacy protections” throughout the information
life cycle, it is unclear how PIAs are evaluated by non-agency actors who may not fully understand the
intended purpose and scope of the information technology being assessed, such as OMB or the public.
The E.O. requires the director of the Office of Science and Technology Policy (OSTP) and the assistant to
the President for economic policy, in consultation with the Attorney General, to solicit feedback to inform
potential revisions to Section 208.
Privacy-Enhancing Technologies
Since the Obama Administration, executive branch policies regarding open government have discussed
risks to privacy resulting from access to information in open and machine-readable formats. OMB has
described these risks as relating to the mosaic effect, where seemingly de-identified information could be
collected and re-combined to reveal individuals. Development and adoption of PETs may enable agencies
to mitigate privacy harms from the mosaic effect while also providing insights related to program
administration and improvement.
In March 2023, components of OSTP released a “National Strategy to Advance Privacy-Preserving Data
Sharing and Analytics,” suggesting that agency adoption of PETs may be influenced by factors such as

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cost and scalability, inconsistent definitions and taxonomy, or tradeoffs between accuracy and utility of
the information, among others.
The E.O. provides a broad definition of privacy-enhancing technology, which includes any software,
hardware, technique, or technological means “of mitigating privacy risks arising from data processing,
including by enhancing predictability, manageability, disassociability, storage, security, and
confidentiality.” The E.O. explains that techniques such as differential privacy, synthetic data generation,
and federated learning could be used.
The E.O. requires the creation of a Research Coordination Network dedicated to advancing privacy
research, specifically “the development, deployment, and scaling of PETs.” Further, it requires the
director of the National Science Foundation to engage with agencies to “identify ongoing work and
potential opportunities to incorporate PETs into their operations.”

Author Information

Meghan M. Stuessy

Analyst in Government Organization and Management

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