U.S. Export Controls of AI Models

42 Pages Posted: 21 Mar 2024

See all articles by Doni Bloomfield

Doni Bloomfield

Fordham University School of Law; Johns Hopkins University - Bloomberg School of Public Health

Date Written: February 27, 2024

Abstract

Artificial intelligence models may pose serious risks in the coming years. In this paper, taking biosecurity risks as a case study, I provide an overview of what U.S. export control laws are, how they currently address AI biosecurity risks, and how they might be used to reduce such risks in the future. I make two main arguments. First, model developers and deployers may face substantial liability under current export control rules if their AI models materially assist anyone in the development or deployment of biological weapons. Second, the export control agencies likely have the statutory and regulatory authority to restrict model developers from (1) making the model weights of frontier models freely available for download, and (2) allowing their models to convey certain forms of dangerous expertise. Although both rules could face substantial First Amendment challenges, courts are likely to uphold narrowly targeted regulations that are well justified on national security grounds. In addition, courts are more likely to uphold controls on generative models that perform technical biological work—known as biological design tools (BDTs)—than controls on models, such as large language models (LLMs), with more traditionally expressive output If and when it is advisable to regulate AI models, U.S. export controls represent one ready, if imperfect tool to mitigate biosecurity risks. Export control rules govern the movement of U.S.-made products around the world, certain actions of U.S. citizens and permanent residents, and the transfer of U.S. technical information to foreign persons. These laws are flexible, backed by substantial criminal sanction, and generally exempt from stringent judicial review under the Administrative Procedure Act. The Commerce and State Departments have extensive leeway to use these laws as they see fit. Export controls have also been used for many decades to reduce biosecurity risks, largely in coordination with U.S. allies through the Australia Group. And export controls have been used historically to control the spread of technical information, software, and computer files, albeit with mixed success.

Keywords: Biosecurity, artificial intelligence, pandemic, pathogen, generative AI, biological design tools, export control laws, large language models, health law, First Amendment, protein folding models, international law

Suggested Citation

Bloomfield, Doni, U.S. Export Controls of AI Models (February 27, 2024). Available at SSRN: https://ssrn.com/abstract=4741033 or http://dx.doi.org/10.2139/ssrn.4741033

Doni Bloomfield (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

Johns Hopkins University - Bloomberg School of Public Health ( email )

615 North Wolfe Street
Baltimore, MD 21205
United States

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