On November 28, 2023, the Legal Intelligencer published an article by Partner Carl Hittinger and Associate Jeffrey Liskov, titled “Biden’s Executive Order on AI: Antitrust Considerations Raised.” Counsel Alyse Stach contributed to the preparation of the article. The authors provided insights and analysis on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, an executive order that offers a road map for the White House’s policy positions and administrative priorities on the rapidly developing and expanding advent of AI.
The article points out that, although nothing in the wide-ranging executive order will immediately impact antitrust enforcement, “it is noteworthy that the Biden administration continues to stress competition and antitrust enforcement in nearly all of its policy publications. Consistent with other Biden administration policies, the executive order makes clear that the Biden administration views large players as threats to competitive markets.”
The article also shares that the “most interesting” aspect of the order is its directive to the FTC. “If the FTC determines it has antitrust jurisdiction over AI under the FTC Act, would such a determination be challenged in the courts?” the authors ask. “The FTC’s approval last week of an omnibus resolution for the next 10 years authorizing the use of compulsory process in nonpublic investigations involving products and services using AI would seem to answer that question.”