Computer code on a screenLast month, President Trump signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (“NDAA” or the “Act”), which, among other things, includes provisions addressing the development and use of artificial intelligence (“AI”) in the context of national security and defense.

Section 2238 of the NDAA charges the U.S. Department of Defense (“DoD” or the “Department”) with developing, maturing, and transitioning AI technologies into operational use.  Within one year of the Act’s enactment, the Secretary of Defense must designate a senior official within the Department to coordinate activities relating to the development and demonstration of AI and machine learning.  Responsibilities of this senior official include the following:

  • Developing a detailed strategic plan for the development and adoption of AI technologies;
  • Engaging with representatives from the defense industry and other private companies, research universities, and unaffiliated nonprofit research institutions;
  • Supporting the development of capabilities that assess and address AI-based threats;
  • Developing classification guidance for all AI-related activities within the Department; and
  • Working with appropriate officials to develop appropriate ethical, legal, and other policies governing the development and use of AI-enabled systems and technologies in operational situations.

Within one year of the Act’s enactment, the designated senior official also must complete a study on past and current advances in AI and the future of the discipline, including the methods and means necessary to further the technology to address national security needs.

Separately, in Section 1051, the NDAA established a new independent commission in the executive branch to review advances in AI, machine learning, and related technologies.  The National Security Commission on Artificial Intelligence (the “Commission”) will be comprised of the Secretaries of Commerce and Defense and senior leaders on relevant congressional committees.  The Act directs the Commission to undertake a comprehensive review of the methods and means necessary to advance the development of AI in the national security context.  This review will consider a number of issues, including AI’s effect on American labor and economic competitiveness, foreign investment, workforce and education incentives, data standards, and military efforts, as well as related ethical considerations.  The Commission’s findings and recommendations will be produced in a report within 180 days of the Act’s enactment, with an annual update thereafter.  Under the statute, the Commission is scheduled to terminate on October 1, 2020.

Tags: Artificial Intelligence (AI), Department of Defense, machine learning, national security, technology
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Photo of Susan B. Cassidy Susan B. Cassidy

Susan is co-chair of the firm’s Aerospace and Defense Industry Group and is a partner in the firm’s Government Contracts and Cybersecurity Practice Groups. She previously served as in-house counsel for two major defense contractors and advises a broad range of government contractors…

Susan is co-chair of the firm’s Aerospace and Defense Industry Group and is a partner in the firm’s Government Contracts and Cybersecurity Practice Groups. She previously served as in-house counsel for two major defense contractors and advises a broad range of government contractors on compliance with FAR and DFARS requirements, with a special expertise in supply chain and cybersecurity requirements. She has an active investigations practice and advises contractors when faced with cyber incidents involving government information. Susan relies on her expertise and experience with the Defense Department and the Intelligence Community to help her clients navigate the complex regulatory intersection of cybersecurity, national security, and government contracts. She is Chambers rated in both Government Contracts and Government Contracts Cybersecurity. In 2023, Chambers USA quoted sources stating that “Susan’s in-house experience coupled with her deep understanding of the regulatory requirements is the perfect balance to navigate legal and commercial matters.”

Her clients range from new entrants into the federal procurement market to well established defense contractors and she provides compliance advices across a broad spectrum of procurement issues. Susan consistently remains at the forefront of legislative and regulatory changes in the procurement area, and in 2018, the National Law Review selected her as a “Go-to Thought Leader” on the topic of Cybersecurity for Government Contractors.

In her work with global, national, and start-up contractors, Susan advises companies on all aspects of government supply chain issues including:

  • Government cybersecurity requirements, including the Cybersecurity Maturity Model Certification (CMMC), DFARS 7012, and NIST SP 800-171 requirements,
  • Evolving sourcing issues such as Section 889, counterfeit part requirements, Section 5949 and limitations on sourcing from China
  • Federal Acquisition Security Council (FASC) regulations and product exclusions,
  • Controlled unclassified information (CUI) obligations, and
  • M&A government cybersecurity due diligence.

Susan has an active internal investigations practice that assists clients when allegations of non-compliance arise with procurement requirements, such as in the following areas:

  • Procurement fraud and FAR mandatory disclosure requirements,
  • Cyber incidents and data spills involving sensitive government information,
  • Allegations of violations of national security requirements, and
  • Compliance with MIL-SPEC requirements, the Qualified Products List, and other sourcing obligations.

In addition to her counseling and investigatory practice, Susan has considerable litigation experience and has represented clients in bid protests, prime-subcontractor disputes, Administrative Procedure Act cases, and product liability litigation before federal courts, state courts, and administrative agencies.

Susan is a former Public Contract Law Procurement Division Co-Chair, former Co-Chair and current Vice-Chair of the ABA PCL Cybersecurity, Privacy and Emerging Technology Committee.

Prior to joining Covington, Susan served as in-house senior counsel at Northrop Grumman Corporation and Motorola Incorporated.

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