Login | November 01, 2024
DOJ compliance guidelines updated to include emerging tech
RICHARD WEINER
Technology for Lawyers
Published: October 18, 2024
The US Department of Justice has recently updated its corporate legal (criminal/fraud) compliance guidelines to include various emerging technologies, including AI.
Any lawyer who represents a corporation should probably take a look.
The document is a revised Evaluation of Corporate Compliance Programs (the “Updated ECCP”).
It was created to help federal prosecutors in evaluating whether or not a corporation is kind of trying hard enough to not break the law.
Because, you know, it’s hard to not break the law if you’re a corporation.
So prosecutors can use these guidelines to analyze the internal processes of corporations to see if they are monitoring their employees hard enough to prevent crimes and fraud.
You get the point.
Overall, the DOJ doesn’t have a rigid formula of corporate actions that it looks at to see if a company is in compliance.
What it does have is a three-pronged test:
1. Is the company’s compliance program well designed?
2. Is the corporation’s program being applied in good faith
3. Does it work in practice?
The update takes into consideration the potentially greater risk profile a company could have through the use of newer technologies, including AI.
Here, the guidance tells the prosecutor to assess the company’s risk profile to determine what sort of protections/precautions the company should be employing and to then try to determine if the company is managing those properly.
This includes methods for testing and monitoring new tech.
That assessment needs to contain whatever it is that the company is doing with or thinks it is doing with AI, including a look at the AI Risk Management Framework released by NIST at the beginning of 2023.
Prosecutors are advised to determine whether the compliance programs are really being applied or are just a “paper program.”
That would include ensuring that compliance personnel have the analytical tools that they need and are trained in using them appropriately.
If you have any questions, I’m sure the DOJ will be happy to help!
Thanks to the folks at Reed Smith for the analysis.