Bolatito Adetula

Tito Adetula is an associate in the firm’s Washington, DC office. She is a member of the Data Privacy and Cybersecurity Practice Group and the Government Contracts Practice Group.

Tito also maintains an active pro bono practice focused on data privacy and cybersecurity matters.

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On April 3, the White House Office of Management and Budget (“OMB”) released two memoranda with AI guidance and requirements for federal agencies, Memorandum M-25-21 on Accelerating Federal Use of AI through Innovation, Governance, and Public Trust (“OMB AI Use Memo“) and Memorandum M-25-22 on Driving Efficient Acquisition of Artificial Intelligence in Government (“OMB AI Procurement Memo”).  According to the White House’s fact sheet, the OMB AI Use and AI Procurement Memos (collectively, the “new OMB AI Memos”), which rescind and replace OMB memos on AI use and procurement issued under President Biden’s Executive Order 14110 (“Biden OMB AI Memos”), shift U.S. AI policy to a “forward-leaning, pro-innovation, and pro-competition mindset” that will make agencies “more agile, cost-effective, and efficient.”  The new OMB AI Memos implement President Trump’s January 23 Executive Order 14179 on “Removing Barriers to American Leadership in Artificial Intelligence” (the “AI EO”), which directs the OMB to revise the Biden OMB AI Memos to make them consistent with the AI EO’s policy of “sustain[ing] and enhance[ing] America’s global AI dominance.” 

Overall, the new OMB AI Memos build on the frameworks established under President Trump’s 2020 Executive Order 13960 on “Promoting the Use of Trustworthy Artificial Intelligence in the Federal Government” and the Biden OMB AI Memos.  This is consistent with the AI EO, which noted that the Administration would “revise” the Biden AI Memos “as necessary.”  At the same time, the new OMB AI Memos include some significant differences from the Biden OMB’s approach in the areas discussed below (as well as other areas).

  • Scope & Definitions.  The OMB AI Use Memo applies to “new and existing AI that is developed, used, or acquired by or on behalf of covered agencies,” with certain exclusions for the Intelligence Community and the Department of Defense.  The memo defines “AI” by reference to Section 238(g) of the John S. McCain National Defense Authorization Act for Fiscal Year 2019.  Like the Biden OMB AI Memos, the OMB AI Use Memo states that “no system should be considered too simple to qualify as covered AI due to a lack of technical complexity.”

    The OMB AI Procurement Memo applies to “AI systems or services that are acquired by or on behalf of covered agencies,” excluding the Intelligence Community, and includes “data systems, software, applications, tools, or utilities” that are “established primarily” for researching, developing, or implementing AI or where an “AI capability” is integrated into another process, operational activity, or technology system.  The memo excludes AI that is “embedded” in “common commercial products” that are widely available for commercial use and have “substantial non-AI purposes or functionalities,” along with AI “used incidentally by a contractor” during contract performance.  In other words, the policies are targeted at software that is primarily used for its AI capabilities, rather than on software that happens to incorporate AI.

Continue Reading OMB Issues First Trump 2.0-Era Requirements for AI Use and Procurement by Federal Agencies

Last month, DeepSeek, an AI start-up based in China, grabbed headlines with claims that its latest large language AI model, DeepSeek-R1, could perform on par with more expensive and market-leading AI models despite allegedly requiring less than $6 million dollars’ worth of computing power from older and less-powerful chips.  Although some industry observers have raised doubts about the validity of DeepSeek’s claims, its AI model and AI-powered application piqued the curiosity of many, leading the DeepSeek application to become the most downloaded in the United States in late January.  DeepSeek was founded in July 2023 and is owned by High-Flyer, a hedge fund based in Hangzhou, Zhejiang.

The explosive popularity of DeepSeek coupled with its Chinese ownership has unsurprisingly raised data security concerns from U.S. Federal and State officials.  These concerns echo many of the same considerations that led to a FAR rule that prohibits telecommunications equipment and services from Huawei and certain other Chinese manufacturers.  What is remarkable here is the pace at which officials at different levels of government—including the White House, Congress, federal agencies, and state governments, have taken action in response to DeepSeek and its perceived risks to national security.  

Federal Government-Wide Responses

  • Bi-Partisan Bill to Ban DeepSeek from Government Devices:  On February 7,Representatives Gottheimer (D-NJ-5) and LaHood (R-IL-16) introduced the No DeepSeek on Government Devices Act (HR 1121).  Reps. Gottheimer and LaHood, who both serve on the House Permanent Select Committee on Intelligence, each issued public statements pointing to grave and deeply held national security concerns regarding DeepSeek.  Rep. Gottheimer has stated that “we have deeply disturbing evidence that [the Chinese Communist Party (“CCP”) is] using DeepSeek to steal the sensitive data of U.S. citizens,” calling DeepSeek “a five-alarm national security fire.”  Representative LaHood stated that “[u]nder no circumstances can we allow a CCP company to obtain sensitive government or personal data.”

While the details of the bill have not yet been unveiled, any future DeepSeek prohibition could be extended by the FAR Council to all federal contractors and may not exempt commercial item contracts under FAR Part 12 or contracts below the simplified acquisition (or even the micro-purchase) threshold, similar to other bans in this sector.  Notably, such a prohibition may leave contractors with questions about the expected scope of implementation, including the particular devices that are covered.Continue Reading U.S. Federal and State Governments Moving Quickly to Restrict Use of DeepSeek