On March 18, the Joint California Policy Working Group on AI Frontier Models (the “Working Group”) released its draft report on the regulation of foundation models, with the aim of providing an “evidence-based foundation for AI policy decisions” in California that “ensure[s] these powerful technologies benefit society globally while reasonably managing emerging risks.”  The Working Group was established by California Governor Gavin Newsom (D) in September 2024, following his veto of California State Senator Scott Wiener (D-San Francisco)’s Safe & Secure Innovation for Frontier AI Models Act (SB 1047).  The Working Group builds on California’s partnership with Stanford University and the University of California, Berkeley, established by Governor Newsom’s 2023 Executive Order on generative AI.

Noting that “foundation model capabilities have rapidly improved” since the veto of SB 1047 and that California’s “unique opportunity” to shape AI governance “may not remain open indefinitely,” the report assesses transparency, third-party risk assessment, and adverse event reporting requirements as key components for foundation model regulation.

Transparency Requirements.  The report finds that foundation model transparency requirements are a “necessary foundation” for AI regulation and recommends that policymakers “prioritize public-facing transparency to best advance accountability.”  Specifically, the report recommends transparency requirements that focus on five categories of information about foundation models: (1) training data acquisition, (2) developer safety practices, (3) developer security practices, (4) pre-deployment testing by developers and third parties, and (5) downstream impacts, potentially including disclosures from entities that host foundation models for download or use.

Third-Party Risk Assessments.  Noting that transparency “is often insufficient and requires supplementary verification mechanisms” for accountability, the report adds that third-party risk assessments are “essential” for “creating incentives for developers to increase the safety of their models.”  To support effective third-party AI evaluations, the report calls on policymakers to consider establishing safe harbors that indemnify public interest safety research and “routing mechanisms” to quickly communicate identified vulnerabilities to developers and affected parties. 

Whistleblower Protections.  Additionally, the report assesses the need for whistleblower protections for employees and contractors of foundation model developers.  The report advises policymakers to “consider protections that cover a broader range of [AI developer] activities,” such as failures to follow a company’s AI safety policy, even if reported conduct does not violate existing laws. 

Adverse Event Reporting Requirements.  The report finds that adverse event reporting, i.e., proactive monitoring systems that collect information about events or incidents from mandated or voluntary reporters, is a “critical first step” in assessing the costs and benefits of AI regulation.  The report recommends that foundation model reporting systems (1) provide reports to agencies that have relevant authority and expertise to address identified harms, with discretion to “share anonymized findings from reports with other industry stakeholders,” (2) use “initially narrow adverse event reporting criteria built around a tightly-defined set of harms” that can be revised over time, and (3) adopt a “hybrid approach” that combines mandatory reporting requirements for critical “parts of the AI stack” with voluntary reporting from downstream users.

Foundation Model Regulation Thresholds.  Finally, the report assesses various options for defining thresholds that would trigger foundation model requirements, including “developer-level” thresholds (e.g., adeveloper’s employee headcount), “cost-level” thresholds (e.g.,compute-related costs of model training), “model-level” thresholds based on the model’s performance on key benchmarks, and “impact-level” thresholds based on the number of commercial users of the model.  The report finds that “compute thresholds,” such as the EU AI Act’s threshold of 1025 floating-point operations per second (“FLOPS”) of computing power for model training, are “currently the most attractive cost-level thresholds” that should be used in combination with other metrics.  Notably, the report “caution[s] against the use of customary developer-level metrics,” such as employee headcount, that “do not consider the specifics of the AI industry and its associated technology.” 

The report and ongoing public comment process will inform lawmakers as they consider AI legislation during the 2025 legislative session, including SB 53, a foundation model whistleblower bill introduced by Senator Wiener last month.  Lawmakers in Colorado, Illinois, Massachusetts, New York, Rhode Island, and Vermont are also considering foundation model legislation.  The New York Responsible AI Safety & Education (“RAISE”) Act (A 6453), for example, would impose transparency, disclosure, documentation, and third-party audit requirements on certain developers of AI models that meet its compute and cost thresholds.

The Working Group is seeking public input on the report through its website, with responses due by April 8, 2025.  The final version of the report is expected to be released by June 2025, ahead of the California legislature’s adjournment in September.

Photo of Jennifer Johnson Jennifer Johnson

Jennifer Johnson is a partner specializing in communications, media and technology matters who serves as Co-Chair of Covington’s Technology Industry Group and its global and multi-disciplinary Artificial Intelligence (AI) and Internet of Things (IoT) Groups. She represents and advises technology companies, content distributors…

Jennifer Johnson is a partner specializing in communications, media and technology matters who serves as Co-Chair of Covington’s Technology Industry Group and its global and multi-disciplinary Artificial Intelligence (AI) and Internet of Things (IoT) Groups. She represents and advises technology companies, content distributors, television companies, trade associations, and other entities on a wide range of media and technology matters. Jennifer has three decades of experience advising clients in the communications, media and technology sectors, and has held leadership roles in these practices for more than twenty years. On technology issues, she collaborates with Covington’s global, multi-disciplinary team to assist companies navigating the complex statutory and regulatory constructs surrounding this evolving area, including product counseling and technology transactions related to connected and autonomous vehicles, internet connected devices, artificial intelligence, smart ecosystems, and other IoT products and services. Jennifer serves on the Board of Editors of The Journal of Robotics, Artificial Intelligence & Law.

Jennifer assists clients in developing and pursuing strategic business and policy objectives before the Federal Communications Commission (FCC) and Congress and through transactions and other business arrangements. She regularly advises clients on FCC regulatory matters and advocates frequently before the FCC. Jennifer has extensive experience negotiating content acquisition and distribution agreements for media and technology companies, including program distribution agreements, network affiliation and other program rights agreements, and agreements providing for the aggregation and distribution of content on over-the-top app-based platforms. She also assists investment clients in structuring, evaluating, and pursuing potential investments in media and technology companies.

Photo of Matthew Shapanka Matthew Shapanka

Matthew Shapanka is a strategic policy and regulatory attorney who helps technology companies and other businesses navigate complex, high-stakes legislative, regulatory, and enforcement matters at the intersection of law and politics. Drawing on 15+ years of experience across private practice, the U.S. Senate…

Matthew Shapanka is a strategic policy and regulatory attorney who helps technology companies and other businesses navigate complex, high-stakes legislative, regulatory, and enforcement matters at the intersection of law and politics. Drawing on 15+ years of experience across private practice, the U.S. Senate, state government, and political campaigns, Matt develops comprehensive policy strategies that identify regulatory risks and position clients to shape policy outcomes.

Public Policy and Regulatory Strategy

Matt serves as a strategic advisor to Fortune 200 companies on emerging technology policy, including artificial intelligence regulation, connected and autonomous vehicles, semiconductors, IoT, and national security matters. He translates complex legal and technical issues into actionable legislative and regulatory strategy, building the policy frameworks and advocacy infrastructure that enable clients to influence policy. He develops policy collateral for federal, state, and international advocacy, coordinates multi-stakeholder coalitions, and represents clients before Congress, federal agencies, and state legislative and regulatory bodies.

His technology policy experience includes securing unprecedented Presidential intervention in the $118 billion Qualcomm-Broadcom transaction (for which Covington was recognized as The American Lawyer 2019 “Dealmakers of the Year”), advising Fortune 200 companies on Bureau of Industry and Security connected vehicle rules, and counseling major internet platforms on autonomous vehicle policy across dozens of states.

Matt leads Covington’s state public policy practice, managing complex multistate legislative and regulatory advocacy campaigns. His state-level work includes securing a last-minute amendment to California’s 2023 money transmitter legislation on behalf of a fintech client and representing major technology companies on state AI, autonomous vehicle, and political advertising compliance matters across dozens of jurisdictions.

Matt rejoined Covington after serving as Chief Counsel for the U.S. Senate Committee on Rules and Administration under Chairwoman Amy Klobuchar (D-MN), where he negotiated the landmark bipartisan Electoral Count Reform Act – legislation that updated presidential election certification procedures for the first time in nearly 140 years. He also oversaw the Committee’s bipartisan January 6th investigation, developing protocols that resulted in unanimous passage of new Capitol security legislation.

Both in Congress and at Covington, Matt has prepared dozens of corporate executives, nonprofit leaders, academics, and presidential nominees for testimony at congressional committee hearings and depositions. He is a skilled legislative drafter and strategist who has composed dozens of bills and amendments introduced in Congress and state legislatures, including many that have been enacted into law.

Election and Political Law Compliance and Enforcement

As a member of Covington’s Chambers-ranked (Band 1) Election and Political Law practice, Matt advises businesses, nonprofits, political committees, candidates, and donors on the full range of federal and state political law compliance matters, including:

Election and campaign finance laws
Lobbying disclosure
Government ethics rules
The SEC Pay-to-Play Rule

He also conducts political law due diligence for M&A transactions, counsels major political funders and donors in compliance and enforcement matters, and represents candidates, ballot measure committees, and donors in election disputes and recounts.

Before law school, Matt served in the administration of former Governor Deval Patrick (D-MA), where he worked on policy, communications, and compliance matters for federal economic recovery funding awarded to the state. He has also staffed federal, state, and local political candidates in Massachusetts and New Hampshire.

Photo of Jayne Ponder Jayne Ponder

Jayne Ponder provides strategic advice to national and multinational companies across industries on existing and emerging data privacy, cybersecurity, and artificial intelligence laws and regulations.

Jayne’s practice focuses on helping clients launch and improve products and services that involve laws governing data privacy…

Jayne Ponder provides strategic advice to national and multinational companies across industries on existing and emerging data privacy, cybersecurity, and artificial intelligence laws and regulations.

Jayne’s practice focuses on helping clients launch and improve products and services that involve laws governing data privacy, artificial intelligence, sensitive data and biometrics, marketing and online advertising, connected devices, and social media. For example, Jayne regularly advises clients on the California Consumer Privacy Act, Colorado AI Act, and the developing patchwork of U.S. state data privacy and artificial intelligence laws. She advises clients on drafting consumer notices, designing consent flows and consumer choices, drafting and negotiating commercial terms, building consumer rights processes, and undertaking data protection impact assessments. In addition, she routinely partners with clients on the development of risk-based privacy and artificial intelligence governance programs that reflect the dynamic regulatory environment and incorporate practical mitigation measures.

Jayne routinely represents clients in enforcement actions brought by the Federal Trade Commission and state attorneys general, particularly in areas related to data privacy, artificial intelligence, advertising, and cybersecurity. Additionally, she helps clients to advance advocacy in rulemaking processes led by federal and state regulators on data privacy, cybersecurity, and artificial intelligence topics.

As part of her practice, Jayne also advises companies on cybersecurity incident preparedness and response, including by drafting, revising, and testing incident response plans, conducting cybersecurity gap assessments, engaging vendors, and analyzing obligations under breach notification laws following an incident.

Jayne maintains an active pro bono practice, including assisting small and nonprofit entities with data privacy topics and elder estate planning.

Photo of August Gweon August Gweon

August Gweon counsels national and multinational companies on new regulatory frameworks governing artificial intelligence, robotics, and other emerging technologies, digital services, and digital infrastructure. August leverages his AI and technology policy experiences to help clients understand AI industry developments, emerging risks, and policy…

August Gweon counsels national and multinational companies on new regulatory frameworks governing artificial intelligence, robotics, and other emerging technologies, digital services, and digital infrastructure. August leverages his AI and technology policy experiences to help clients understand AI industry developments, emerging risks, and policy and enforcement trends. He regularly advises clients on AI governance, risk management, and compliance under data privacy, consumer protection, safety, procurement, and platform laws.

August’s practice includes providing comprehensive advice on U.S. state and federal AI policies and legislation, including the Colorado AI Act and state laws regulating automated decision-making technologies, AI-generated content, generative AI systems and chatbots, and foundation models. He also assists clients in assessing risks and compliance under federal and state privacy laws like the California Privacy Rights Act, responding to government inquiries and investigations, and engaging in AI public policy advocacy and rulemaking.