Whistleblowing Developments: Proposed AI Whistleblower Protection Act and AI-Related Executive Orders (Part 4)

In this episode of S&C’s Critical Insights, Kamil Shields, a partner in S&C’s Litigation Group, Mehdi Ansari, Co-Head of the Artificial Intelligence Practice, and Litigation Associate Sabrina Solow discuss whistleblowing developments, including the proposed AI Whistleblower Protection Act.

They also compare how the current and prior administrations have approached AI through executive orders, and examine recent parallel criminal and civil cases brought by the Department of Justice and Securities and Exchange Commission for alleged “AI-washing,” which refers to a company’s false or misleading statements about its use of AI and the capabilities of its AI program.

A preview of the conversation can be found in the Q+A below.

Sabrina: Mehdi, could you describe the recent legislation to protect AI whistleblowers and how it came about?

Mehdi: Introduction of this bill comes on the heels of commentary from Senator Grassley and others expressing concern that employment and non-disclosure agreements may be stifling employees of AI companies from making protected disclosures to government regulators. … It is worth noting that current whistleblower protections under Sarbanes-Oxley and Dodd-Frank are generally tied to reporting unlawful activity. This Act would be broader, covering disclosures about risks that may not yet be illegal.

Sabrina: Kamil, what would Senator Grassley’s proposed AI Whistleblower Act do? 

Kamil: Importantly, unlike other regimes discussed in prior episodes, the legislation does not purport to offer the opportunity for a large monetary reward for blowing the whistle. It does, however, contain a section called “Anti-Retaliation Protection for AI Whistleblowers.” That section protects a whistleblower who provided information regarding an AI security vulnerability or conduct the whistleblower reasonably believes to be an AI security vulnerability or AI violation from a range of retaliatory conduct, including demotion, suspension, threats, harassment, or termination.