In brief
On January 20, 2025, the first day of his second term, President Trump revoked Executive Order 14110 on Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence (“Biden Order”), signed by President Biden in October 2023. In doing so, President Trump fulfilled a campaign pledge to roll back the Biden Order, which the 2024 Republican platform described as a “dangerous” measure. Then on January 23, 2025, President Trump issued his own Executive Order on AI, entitled Removing Barriers to American Leadership in Artificial Intelligence (“Trump Order”). Here, we examine some of the practical implications of the repeal and replacement of executive orders by Trump and what it means for businesses.
Contents
Overview
Building on the White House’s 2022 Blueprint for an AI Bill of Rights, the Biden Order outlined a sweeping vision for the future of AI within the federal government, including seven high-level objectives: (1) Ensuring the Safety and Security of AI Technology; (2) Promoting Innovation and Competition; (3) Supporting Workers; (4) Advancing Equity and Civil Rights.; (4) Protecting Consumers, Patients, Passengers, and Students; (5) Protecting Privacy; (6) Advancing Federal Government Use of AI; and (7) Strengthening American Leadership Abroad.
The Biden Order directed various measures across the federal apparatus –imposing 150 distinct requirements on more than 50 federal agencies and other government entities, representing a genuinely whole-of-government response.
Although the bulk of the Biden Order is addressed to federal agencies, some of its provisions had potentially significant impacts on private sector entities. For example, the Biden Order directed the Commerce Department to require developers to report on the development of higher risk AI systems. Similarly, the Biden order directed the Commerce Department to establish requirements for domestic Infrastructure as a Service (IaaS) providers to report to the government whenever they contract with foreign parties for the training of large AI models. The Biden Order also open-endedly instructed federal agencies to use existing consumer protection laws to enforce against fraud, unintended bias, discrimination, infringements on privacy, and other harms from AI — a directive various federal regulators actioned under the Biden administration.
Other than the definition of AI, the Trump Order and Biden Order share no similarities (both Orders point to the AI definition from 15 U.S.C. 9401(3), namely: “a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments”). The Trump Order does not contain specific directives (such as those in the Biden Order), but instead articulates the national AI policy to “sustain and enhance America’s global AI dominance in order to promote human flourishing, economic competitiveness, and national security.” The Trump Order directs a few specific roles within the administration to develop an Artificial Intelligence Action Plan within 180 days (i.e., by July 22, 2025) to achieve the policy objective articulated in the Trump Order. The Trump Order directs these same roles within the administration to review the policies, directives, regulations, orders, and other actions taken pursuant to the Biden Order and to suspend, revise, or rescind any such actions that are inconsistent with the Trump Order’s stated policy. In cases where suspension, revision, or rescission of the prior action cannot be finalized immediately, the heads of agencies are instructed to “to provide all available exemptions” in the interim.
Practical impacts
The practical effect of the revocation of the Biden Order — and the options available under the Trump Order — will vary depending on the measure. Although there are widespread impacts from the revocation of the Biden Order’s mandates across multiple initiatives and institutions, below are those that are expected to have a significant impact on private sector entities engaged in the development or use or AI.
Reporting requirement for powerful AI models: As noted, the Biden Order directed the Department of Commerce to establish a requirement for developers to provide reports on “dual-use foundation models” (broadly, models that exhibit high levels performance at tasks that pose a serious risk to security, national economic security, national public health or safety). Pursuant to the Biden Order, the Bureau of Industry and Security’s (BIS), a Commerce Department agency, published a proposed rule to establish reporting requirements on the development of advanced AI models and computing clusters under its Defense Production Act authority, but had not issued a final rule prior to the revocation of the Biden Order. It is likely that the new administration will closely scrutinize this reporting requirement and may take action to block the adoption of the final rule if it is found to be inconsistent with the policy statement in the Trump order.
Development of AI standards: The Biden Order required the Department of Commerce, acting through National Institute of Standards and Technology (NIST), to establish guidelines and best practices to promote standardization with respect to the development and deployment of safe, secure, and trustworthy AI systems. Pursuant to the Biden Order, NIST released new guidance (based on an April 2024 draft) and tools to serve as a companion resource to NIST’s AI Risk Management Framework (AI RMF) for the improvement of the safety, security and trustworthiness of AI systems. The revocation of the Biden Order does not directly negate the already-issued guidance, which in any event is a voluntary tool for developers and deployers. In practical terms, although there is no requirement to follow the guidance, these schemes are widely used in the industry as benchmarks; they enable organizations to assess whether their risk management policies regarding synthetic media are sufficient, which is increasingly important in view of significant new laws targeting deepfakes coming into effect recently. Under the Trump Order, however, these materials may be reviewed and rescinded if they are found to be inconsistent with the policy of the Trump Order.
Identifying and labeling synthetic content: The profusion of deepfakes and other deceptive AI-generated content has led to public concern, animated policy discussions, and significant legislative activity at least at the state level. The Biden Order mandated the Commerce Department (in consultation with other relevant agencies) to identify existing standards and develop further standards for authenticating digital content and labeling and detecting synthetic content. On 20 November 2024, NIST released its first synthetic content guidance report pursuant to the Biden Order. Similar to the safety standards discussed above, the guidance is not mandatory and is intended inform industry best practices for managing synthetic content risks. The revocation of the Biden Order does not directly negate the guidance. The NIST guidance will be reviewed pursuant to the Trump Order.
Consumer protections: The Biden Order promoted an ambitious agenda to protect consumers, patients and students from AI harms, directing independent regulatory agencies to consider using their full range of authorities to protect consumers from fraud, discrimination, and threats to privacy and other risks that may arise from the use of AI. The Biden Order also open-endedly called on the Federal Trade Commission (FTC) to ensure fair competition in the AI marketplace and to ensure that consumers and workers are protected from harms relating to the use of AI. Under Biden’s administration, the FTC enthusiastically took up this suggestion, pursuing enforcement against businesses that deceived consumers about AI products or used AI products in other ways that harm consumers under a program it deemed “Operation AI Comply”. With new leadership at the FTC and other agencies, we expect to see less strident federal enforcement in the AI space in the coming years; enforcement premised on fairness, bias and discrimination allegations may be especially impacted. For example, Andrew Ferguson, whom Trump has elevated to chair the FTC, has criticized the invocation of Section 5 of the FTC Act against the publishers of AI products with the mere capability to cause deception.
Reduced federal compliance burden for employers: Among other measures, the Biden Order required the Secretary of Labor to publish guidance to help government contractors avoid potential discrimination associated with using AI-based hiring systems. Pursuant to this direction, the Labor Department issued a memorandum explaining the implications of AI systems under the Fair Labor Standards Act. By revoking the Biden Order, employers using AI will no longer be subject to such guidance or face mandatory federal reporting requirements. Further, it is conceivable that the Trump administration may also revoke (or otherwise water down) AI-related employment discrimination guidance from the Equal Employment Opportunity Commission, Department of Justice and Department of Labor.
AI Safety Institute: Within days of its issuance, the Department of Commerce established the US Artificial Intelligence Safety Institute (AISI) at the direction of President Biden to help lead and coordinate the federal government’s response to AI technologies. The AISI was especially busy in the final months of the Biden presidency, establishing a government taskforce on the research and testing of AI models to manage national security capabilities and risks in November. In the same month, the AISI launched a network of global AI safety institutes, of which the US AISI will serve as the inaugural chair. Although the Trump Order does not specifically identify the AISI, the result of the Trump Order may be to limit the work of, or even terminate, the AISI.
What’s next?
President Trump’s actions to date mark a decisive policy shift from his predecessor. While former President Biden shaped his AI policy around the view that the government should promote AI that is safe, reliable, transparent and fair, President Trump is squarely focused on maintaining and strengthening the primacy of the US AI industry — a goal echoed in his announcement of the Stargate initiative to invest in AI infrastructure. This combined with hiring freezes and key government appointees and replacements with industry alignment, will likely result in a different approach to AI enforcement.
