Prosecutors to Consider Companies’ Use of AI When Assessing Compliance Programs

Companies’ use of artificial intelligence (AI) is one of the things prosecutors will look at when assessing their compliance programs during investigations of criminal offenses like bribery or fraud.

Nicole Argentieri, principal deputy assistant attorney general for the criminal division of the Department of Justice (DOJ), said this on Monday (Sept. 23) while outlining changes to the DOJ’s Evaluation of Corporate Compliance Programs (ECCP), the Wall Street Journal (WSJ) reported Tuesday (Sept. 24).

This DOJ guidance is important to lawyers and compliance officers because compliance programs that adhere to its guidelines are eligible for more lenient treatment when a compliance breakdown occurs, according to the report.

In prepared remarks for a speech delivered Monday, Argentieri said that under the updated ECCP, prosecutors will consider AI and other technology a company uses to conduct business, whether the company has conducted a risk assessment of the use of that technology, and whether it has taken steps to mitigate that risk.

“For example, prosecutors will consider whether the company is vulnerable to criminal schemes enabled by new technology, such as false approvals and documentation generated by AI,” Argentieri said. “If so, we will consider whether compliance controls and tools are in place to identify and mitigate those risks, such as tools to confirm the accuracy or reliability of data used in the business. We also want to know whether the company is monitoring and testing its technology to evaluate if it is functioning as intended and consistent with the company’s code of conduct.”

In the second of three major changes to the ECCP outlined in her speech, Argentieri said prosecutors will consider companies’ commitment to whistleblower protection and treatment of employees who report misconduct.

The third update outlined in the speech covers a compliance program’s access to data and technology, and whether the company is putting the same resources into compliance as it puts into other parts of the business.

The ECCP was first issued in 2017 to lay out a series of factors for prosecutors to consider when assessing the effectiveness of corporate compliance programs as part of making charging decisions and negotiating resolutions.