On February 14, 2024, Deputy Attorney General Lisa O. Monaco announced an initiative within the U.S. Department of Justice to ramp up the detection and prosecution of crimes perpetrated through artificial intelligence (AI) technology, including seeking harsher sentences for certain AI-assisted crimes. Monaco also announced a new effort to evaluate how the Department can best use AI internally to advance its mission while guarding against AI risks.

Fighting AI-Assisted Crime. Last October, President Biden issued an Executive Order on the Safe, Secure, and Trustworthy Development and Use of AI, which Monaco said “charges the Justice Department to anticipate the impact of AI on our criminal justice system, on competition, and on our national security.” Monaco expressed that, while AI holds great promise, it “is also accelerating risks to our collective security,” and she highlighted two areas where DOJ will focus its AI enforcement efforts:

  • Election Security. Monaco noted that, with more than four billion people around the world able to vote in elections this year, AI gives foreign adversaries a multitude of ways to harm voters. Bad actors can seek to use AI to “radicalize users on social media with incendiary content created with generative AI,” to “misinform voters by impersonating trusted sources and spreading deepfakes,” and can use “chatbots, fake images and even cloned voices” to spread falsehoods about elections and seek to deny people their right to vote.
  • National Security. In February 2023, DOJ and the Commerce Department announced the “Disruptive Technology Strike Force”—an effort to enforce export control laws “to strike back against adversaries trying to siphon off America’s most advanced technology and use it against us.” Monaco said that, going forward, this Strike Force “will place AI at the very top of its enforcement priority list.” She declared AI “the ultimate disruptive technology” and stressed that DOJ will work to “neutralize [America’s] adversaries” so that they cannot use AI to threaten U.S. national security.

To investigate and prosecute AI-assisted crime—whether in the areas of election security, national security, or otherwise—Monaco said that DOJ will rely on “existing and enduring legal tools to their fullest extent” and will seek “to build on them where new ones may be needed.” As examples, she noted that “discrimination using AI is still discrimination,” “price fixing using AI is still price fixing,” and “identity theft using AI is still identity theft.”

Critically, Monaco noted that because AI—like a firearm—can “enhance the danger of a crime,” DOJ will now seek harsher sentences for criminal offenses “made significantly more dangerous by the misuse of AI.”

We will be monitoring closely to see if the Department issues further guidance regarding the circumstances in which prosecutors will seek such an AI-based sentencing increase. It also remains to be seen whether DOJ will incorporate such enhancements into its Corporate Enforcement Policy, such as by seeking harsher penalties for companies that engage in criminal wrongdoing through the misuse of AI technology.

Justice AI. In the same speech, Monaco announced “Justice AI”—an effort to study how best to use AI within the Department and to deploy AI technology to advance DOJ’s mission, while guarding against risks. DOJ recently appointed its first “Cyber AI Officer,” who will help to bring together DOJ’s law enforcement and civil rights teams, working with a newly formed “Emerging Technology Board” to advise the Attorney General on the responsible and ethical uses of AI by DOJ.

Monaco said that the Justice AI initiative will also convene individuals from across civil society, academia, science, and industry so that the Department can “draw on varied perspectives” in evaluating how to use AI.

Monaco noted that DOJ, like other federal agencies, is working to create guidance to govern its use of AI. Thus, for example, before DOJ uses a new AI system to “assist in identifying a criminal suspect” or to “support a sentencing decision,” the Department “must first rigorously stress test that AI application and assess its fairness, accuracy, and safety.” Monaco also pointed out that DOJ already has deployed AI for certain functions, such as tracing the sources of opioids, triaging tips submitted to the FBI, and synthesizing huge volumes of evidence in certain cases.

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The cover art used in this blog post was generated by DALL-E.

 

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Helen V. Cantwell is Co-Chair of the White Collar & Regulatory Defense Group at Debevoise and a litigation partner with extensive trial experience. She can be reached at hcantwell@debevoise.com.

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Andrew J. Ceresney is a partner in the New York office and Co-Chair of the Litigation Department. Mr. Ceresney represents public companies, financial institutions, asset management firms, accounting firms, boards of directors, and individuals in federal and state government investigations and contested litigation in federal and state courts. Mr. Ceresney has many years of experience prosecuting and defending a wide range of white collar criminal and civil cases, having served in senior law enforcement roles at both the United States Securities and Exchange Commission and the U.S. Attorney’s Office for the Southern District of New York. Mr. Ceresney also has tried and supervised many jury and non-jury trials and argued numerous appeals before federal and state courts of appeal.

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Avi Gesser is Co-Chair of the Debevoise Data Strategy & Security Group. His practice focuses on advising major companies on a wide range of cybersecurity, privacy and artificial intelligence matters. He can be reached at agesser@debevoise.com.

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Andrew Levine is a litigation partner who focuses his practice on white collar and regulatory defense, internal investigations and a broad range of complex commercial litigation. He regularly defends companies in criminal, civil and regulatory enforcement matters and has conducted numerous investigations throughout the world. Mr. Levine frequently advises companies on compliance matters, including with respect to the U.S. Foreign Corrupt Practices Act, and the assessment and management of risks presented by potential mergers, acquisitions and other transactions. In 2014, Mr. Levine was named to Global Investigations Review’s inaugural “40 Under 40” list of the world’s leading investigations lawyers, and he was recognized in 2013 as a Rising Star by the New York Law Journal. Mr. Levine is recommended for international litigation in The Legal 500 US (2022), where clients have described him as “smart, responsive, collaborative and sharp in his advice.” He is ranked as a leading lawyer for FCPA by Chambers USA (2022), where clients say “he is focused on pragmatic solutions.” Sources have also said that “his breadth of knowledge is unparalleled,” he is “exceptionally able and capable,” and “very pragmatic and hands-on. He’s able to conceptualize and simplify quite quickly complex considerations and situations.” In Chambers Global (2023) and Chambers Latin America (2023), where Mr. Levine is recommended as a top-tier lawyer, clients note that “he stands out for his client service and attention to detail,” describing him as “a lawyer that turns complexity into simplicity.” They also note that he is “extremely professional and technical” and he has “a deep experience in Latin America.” In previous editions of the guides, he has been lauded as “an impressive and tireless thought leader,” “an extremely well-known figure globally,” “a very thoughtful and service-oriented lawyer,” “a reassuring presence in tumultuous times,” “a calm, competent and thorough practitioner” and “brilliant, hard-working and thoughtful.” Clients are said to value his “encyclopedic knowledge” and his “ability to condense a complex situation into something understandable and manageable.” Mr. Levine is also ranked as a leading lawyer by The Legal 500 Latin America (2023), where clients describe him as “an amazing lawyer” and “the US lawyer that knows the Latin America compliance and investigation market the best.” In previous editions of the guide, he is described as a “superstar,” with clients noting that “he has a wealth of experience,” is “extremely articulate” and “he has an amazing analytical ability.” Latin Lawyer notes Mr. Levine’s “substantial work in Latin America,” recognizing him as one of the top lawyers active on anti-corruption matters in the region.

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David A. O’Neil is a litigation partner and member of the firm’s White Collar & Regulatory Defense Group. Recommended by Chambers USA (2021) and The Legal 500 US (2021) as a leading lawyer in White Collar Crime & Government Investigations and International Litigation, his practice focuses on white collar criminal defense, internal investigations, anti-corruption and FCPA defense and congressional investigations. In both 2018 and 2020, Mr. O’Neil was recognized as a Litigation Trailblazer by the National Law Journal and he was named a White Collar MVP by Law 360 in 2018. In Chambers USA (2020), clients report that he is “driven, practical and offers a level of common sense and solutions focus that few bring.” He has also been described as “responsive and sharp, he spots the key issues straightaway and is able to quickly analyze and break them down in a manner to be tackled.” Mr. O’Neil is also recommended for compliance and investigations by The Legal 500 Latin America (2021).

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Winston M. Paes is a litigation partner and a member of the White Collar & Regulatory Defense Group at Debevoise. He can be reached at wmpaes@debevoise.com.

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Jane Shvets is a Debevoise partner in the firm’s White Collar & Regulatory Defense Group, focusing on white collar defense and internal investigations, in particular regarding compliance with corrupt practices legislation, as well as compliance assessments. Ms. Shvets also advises multinational clients on data protection and cybersecurity matters as well as a wide range of sanctions issues. She can be reached at jshvets@debevoise.com.

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Bruce Yannett is Deputy Presiding Partner of the firm, a member of the firm’s Management Committee and Chair of the White Collar & Regulatory Defense Practice Group. He focuses on white collar criminal defense, regulatory enforcement and internal investigations. He represents a broad range of companies, financial institutions and their executives in matters involving securities fraud, accounting fraud, foreign bribery, cybersecurity, insider trading and money laundering. He has extensive experience representing corporations and individuals outside the United States in responding to inquiries and investigations.

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Douglas S. Zolkind is a litigation partner based in the New York office and a member of the firm’s White Collar & Regulatory Defense Group. He has extensive trial experience and focuses his practice on white collar criminal defense, government investigations, and internal investigations. He defends corporate and individual clients in criminal and regulatory enforcement matters around the world.