The Leak and Its Implications
In late 2024, a draft AI regulatory bill attributed to Anthropic was leaked, sparking debate among lawmakers and policy analysts. The bill proposed a federal framework for overseeing frontier AI, focusing on three main areas: mandatory independent audits, transparency for catastrophic risk disclosures, and broad preemption of state AI laws.
Critics, including AI safety advocates and legal scholars, quickly voiced concerns. The bill requires proof of imminent catastrophic harm, defined as more than 50 deaths or $1 billion in damage, before federal authorities can intervene in AI model development. It also limits state powers to halt AI activities, centralizing authority at the federal level while making it harder for federal action to be taken.
Timeline of Events
June 2024: Anthropic releases a policy framework advocating for federal AI regulation, stating that Congress should only preempt state law if a rigorous federal regime is enacted.
July 2024: The FRONTIER Act is introduced in Congress as a compromise to address frontier AI risks.
Late 2024: Anthropic's draft bill leaks, revealing it to be weaker than both the June framework and the FRONTIER Act, despite advancements in AI capabilities and emerging risks.
Immediate response: AI safety researchers and policy advocates critique the bill, highlighting provisions that weaken existing protections.
Key Failures in the Draft Bill
1. Insufficient Emergency Authority
The bill imposes a multi-stage burden of proof before federal authorities can restrict a frontier model. An agency head must demonstrate that no alternative exists to prevent an imminent catastrophe, with courts instructed to consider developer harms but not catastrophic risks. This standard is more stringent than current legal powers that allow courts to block activities posing imminent public harm.
2. Preemption Without Adequate Federal Replacement
The bill preempts state regulation of frontier-risk disclosure, third-party evaluation, and incident reporting, replacing measures like California's SB 53 with a weaker federal framework. This forward-looking preemption removes a critical safety valve, as state attorneys general and courts have historically filled enforcement gaps when federal agencies lack resources or expertise.
3. Lack of Auditor Independence
While the bill mandates independent audits, it lacks government licensing or qualification standards for auditors. Without these, auditors may compete to offer the least burdensome audits. The lab selects its own auditor without government oversight, unlike financial services where regulators maintain qualification standards and conduct reviews.
Standards and Requirements
ISO/IEC 42001 requires organizations to establish processes for identifying and complying with legal requirements. Regulatory frameworks should align with an organization's risk management objectives.
NIST AI RMF calls for organizations to maintain governance structures reflecting their values. Companies prioritizing safety should propose governance frameworks that emphasize safety over business interests.
SR 11-7 mandates "effective challenge" from independent parties with expertise and authority. Independence requires freedom from conflicts of interest, not just organizational separation.
The EU AI Act requires third-party conformity assessments by accredited bodies, ensuring independence and oversight.
Action Items for Your Team
Align Regulatory Positions with Risk Assessments
Ensure your regulatory advocacy matches your risk assessments. If a risk is identified as catastrophic, proposed controls should reflect that severity. Gaps between risks and mitigations can lead to legal and reputational issues.
Action: Map each catastrophic risk scenario to specific regulatory provisions you support. Ensure a direct link between identified risks and proposed controls.
Assess Preemption Provisions
Evaluate whether federal substitutes for state laws maintain equivalent protection. Your compliance program must meet the higher standard, whether federal or state.
Action: Document the obligations of each preempted state law, the federal substitute requirements, and any gaps. Determine if your internal standards maintain state-level protection.
Ensure Validation Independence
Don't rely solely on regulatory minimums for model validation independence. Establish qualification standards, rotate validators, and ensure they have authority to block deployments.
Action: Review your validator selection process. Ensure the business unit being validated can't influence validator selection, and that validators' employment doesn't depend on approvals.
Maintain State Compliance Readiness
Even with federal preemption, state enforcement can pursue claims through other legal avenues. Maintain documentation to satisfy state-level transparency and safety requirements.
Action: Keep state compliance programs intact. Be prepared to demonstrate compliance with preempted standards if federal enforcement is weak.
The Anthropic draft bill illustrates regulatory capture, where procedural protections are prioritized over public safety. Your role is to ensure your organization's regulatory advocacy aligns with its risk assessments. Divergence indicates a failure in risk assessment or policy advocacy, both requiring immediate attention.
