AI and machine learning technologies remain a focus of the U.S. government’s national security apparatus. AI is a key sector in the Unites States’ race against China to remain at the forefront in the development and deployment of emerging technologies, and a concern for its potential to be deployed for surveillance and repression. The national security concerns manifest themselves across a number of regulatory regimes, most prominently export controls—the transfer of items and technology to non-U.S. entities—and CFIUS—an interagency committee to review the national security effect of foreign investments in U.S. businesses. Since 2018, the U.S. government has identified AI and attendant software and technology as emerging technology areas for which additional export controls are necessary, but the Commerce Department has yet to issue significant new rules identifying such controls, except for a narrow rule addressing AI software for geospatial imagery analysis. In the absence of such rules, however, companies should not assume the U.S. government is not concerned about the lawful or unlawful acquisition or transfer of their AI technology outside the United States. Indeed, companies in the AI space must consider the implications of foreign investment in their business, as well as cross-border partnerships and technical licensing arrangements, especially if such activities are with partners in countries of particular concern to the U.S. government, like China and Russia.
This post is a part of a series on trends in the artificial intelligence space for 2022, authored by MoFo lawyers.