DOJ to Incorporate AI Into Guidance on Evaluation of Corporate Compliance Programs

On March 7, 2024, in an address at the American Bar Association’s 39th National Institute on White Collar Crime, Deputy Attorney General Lisa Monaco made clear that the US Department of Justice (DOJ) will continue to crack down on corporate practices related to artificial intelligence (AI). For further coverage about her speech, see our client alert here.

Of particular note, Monaco directed the DOJ Criminal Division to update its guidance on Evaluation of Corporate Compliance Programs to incorporate risks associated with AI. In her words, misuse of AI is one of the “most significant risks” for a growing number of businesses. Moving forward, this means companies can expect prosecutors to consider efforts to mitigate AI-related risks as part of an assessment of the company’s broader compliance program.

Echoing her speech at the University of Oxford in February (which we wrote about here), Monaco also reiterated that prosecutors will seek sentencing enhancements for offenses involving the misuse of AI. Further, she provided an update on the “Justice AI” initiative she announced last month, which is an effort to bring together stakeholders across industry, academia, law enforcement, and civil society to address the impacts of AI. Monaco led the first such discussion in the San Francisco Bay Area last week and made clear these conversations would inform DOJ’s AI policy, including its guidance on Evaluation of Corporate Compliance Programs.

Monaco’s comments came a day after Attorney General Merrick Garland discussed the increasing criminal use of AI and resulting “heightened level of threats.” He began his remarks by announcing a recently unsealed indictment in the Northern District of California charging a Chinese national with theft of AI-related trade secrets, signaling that AI has become a key focus for DOJ.

Key Takeaway

DOJ is focused on threats posed by AI, and is likely to take the view that effective compliance programs will consider risks posed by the use (and potential misuse) of AI. 

To receive the latest insights on US legal developments, subscribe to the Freshfields A Fresh Take Blog.