DOJ to Evaluate AI Risk Management and Whistleblower Protections in Corporate Compliance Programs

Over the past year, the Department of Justice ("DOJ") has warned that it will seek stiffer sentences for offenses made significantly more dangerous by the misuse of artificial intelligence ("AI") and has asked the US Sentencing Commission to revise the US Federal Sentencing Guidelines to include an AI-specific sentencing enhancement. The DOJ also announced the Corporate Whistleblower Awards Pilot Program (the "Pilot Program"), which uses financial rewards to incentivize whistleblowers to report corporate misconduct to the Department.

In her remarks at the Society of Corporate Compliance and Ethics 23rd Annual Compliance & Ethics Institute, Principal Deputy Assistant Attorney General Nicole Argentieri announced updates to the DOJ's Evaluation of Corporate Compliance Programs ("ECCP").¹ The ECCP is a document that guides federal prosecutors' assessment of a company's compliance program to inform the Department's discretionary charging and resolution decisions. The updated ECCP includes questions that target (1) whether companies assess risks and implement appropriate controls surrounding the use of new technology such as AI in their business operations and (2) companies' commitment to whistleblower protection and anti-retaliation.²

• Although the updated ECCP references new technologies more broadly, it is clear that AI remains top of mind for the DOJ. Some of the new questions in the updated ECCP include:
• How does the company assess the potential impact of new technologies, such as AI, on its ability to comply with criminal laws?³
• To the extent that the company uses AI and similar technologies in its business or as part of its compliance program, are controls in place to monitor and ensure its trustworthiness, reliability, and use in compliance with applicable law and the company's code of conduct
• What baseline of human decision-making is used to assess AI?
• How is accountability over use of AI monitored? 

The questions about whistleblower protection and anti-retaliation focus on whether companies have relevant policies and training and in practice treat employees who report misconduct in a manner that "encourag[es] employees to speak up and report misconduct or whether companies employ practices that chill reporting."⁴ These updates are consistent with the DOJ's scrutiny of whistleblower treatment in connection with the Department's launch of the Pilot Program. Argentieri also provided an update on the Pilot Program: "We have received tips from over 100 individuals to date, with more coming in every day."⁵

The DOJ's message is clear: "[M]ake the necessary compliance investments to help prevent, detect, and remediate misconduct. And when you uncover misconduct: call us before we call you."⁶ This, of course, aligns with the DOJ's underlying objective of prompting quick and comprehensive disclosure. Whether and how to do so requires a nuanced analysis, however, as the reward may or may not outweigh the detriment. Notably, DOJ has not offered guidance setting forth the specific standards or steps they consider necessary. Using their historic guidance in other areas as a guide, it will most likely develop over time and accommodate to the size and complexity of the company. Should enforcement and regulatory queries arise, the Firm's White Collar/Investigations Practice has practical and current experience managing such inquiries and advising on the risks.

_{1 Office of Public Affairs | Principal Deputy Assistant Attorney General Nicole M. Argentieri Delivers Remarks at the Society of Corporate Compliance and Ethics 23rd Annual Compliance & Ethics Institute | United States Department of Justice
2 Office of Public Affairs | Principal Deputy Assistant Attorney General Nicole M. Argentieri Delivers Remarks at the Society of Corporate Compliance and Ethics 23rd Annual Compliance & Ethics Institute | United States Department of Justice
3 Criminal Division | Evaluation of Corporate Compliance Programs (Updated September 2024) | United States Department of Justice
4 Office of Public Affairs | Principal Deputy Assistant Attorney General Nicole M. Argentieri Delivers Remarks at the Society of Corporate Compliance and Ethics 23rd Annual Compliance & Ethics Institute | United States Department of Justice
5 Office of Public Affairs | Principal Deputy Assistant Attorney General Nicole M. Argentieri Delivers Remarks at the Society of Corporate Compliance and Ethics 23rd Annual Compliance & Ethics Institute | United States Department of Justice
6 Office of Public Affairs | Principal Deputy Assistant Attorney General Nicole M. Argentieri Delivers Remarks at the Society of Corporate Compliance and Ethics 23rd Annual Compliance & Ethics Institute | United States Department of Justice}

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_{This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.}

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