A Safe Harbor for AI Evaluation and Red Teaming (2403.04893v1)

Abstract: Independent evaluation and red teaming are critical for identifying the risks posed by generative AI systems. However, the terms of service and enforcement strategies used by prominent AI companies to deter model misuse have disincentives on good faith safety evaluations. This causes some researchers to fear that conducting such research or releasing their findings will result in account suspensions or legal reprisal. Although some companies offer researcher access programs, they are an inadequate substitute for independent research access, as they have limited community representation, receive inadequate funding, and lack independence from corporate incentives. We propose that major AI developers commit to providing a legal and technical safe harbor, indemnifying public interest safety research and protecting it from the threat of account suspensions or legal reprisal. These proposals emerged from our collective experience conducting safety, privacy, and trustworthiness research on generative AI systems, where norms and incentives could be better aligned with public interests, without exacerbating model misuse. We believe these commitments are a necessary step towards more inclusive and unimpeded community efforts to tackle the risks of generative AI.

• The paper introduces dual safe harbor frameworks—legal and technical—to enable independent adversarial evaluation of generative AI systems.
• It details mechanisms such as pre-registration and transparent appeals to counter restrictive access policies that impede comprehensive safety research.
• The study underscores the need for aligned incentives and regulatory clarity to foster robust, transparent reviews and risk mitigation strategies in AI deployment.

A Safe Harbor for AI Evaluation and Red Teaming: Realigning Incentives for Independent Safety Research

Context and Motivation

The proliferation of generative AI systems has surfaced substantive risks across a wide sociotechnical front, including privacy violations, misinformation, toxicity, disinformation campaigns, fraud, and unsafe outputs spanning from bioweapon synthesis to self-harm instructions. Despite regulatory and academic consensus on the necessity of external scrutiny for deployed foundation models, leading AI companies have erected substantial legal and technical barriers to independent evaluation of their systems. Terms of service typically proscribe adversarial testing, jailbreaks, or the release of findings on model safety or vulnerabilities, with enforcement through account suspensions and implicit legal threat, thereby creating a tangible chilling effect.

While industry-controlled research access programs provide limited opportunities for third-party evaluation, they lack transparency, are highly selective, and are deeply misaligned with the norms of adversarial auditing and broad-based participation seen in cybersecurity. The result is a narrowing of the independent safety research pipeline, with commensurate negative effects on risk discovery, diversity of threat modeling, and public trust.

Safe Harbor Proposals: Legal and Technical Dimensions

The central contribution is the articulation of two voluntary commitments—legal and technical safe harbors—as foundational enablers for robust, independent AI safety research.

Legal Safe Harbor:

This commitment requires AI companies to indemnify public interest researchers for good-faith vulnerability and safety research, provided the work complies with established norms of responsible disclosure and avoids harm to individuals or the public. Notably, the definition of "good faith" must not be at the sole discretion of the vendor, but tethered to ex post behavioral and procedural criteria. The legal landscape, especially in the US, presents acute risks under statutes like the CFAA and DMCA §1201, and the paper underscores the need for both company-originated safe harbor policies and legislative clarity (e.g., via NIST guidelines and DoJ charging policies).

Technical Safe Harbor:

Beyond legal protection, researchers require procedural guarantees that their accounts will not be summarily suspended during safety research performed within defined, transparent policies. The technical safe harbor involves two key scaling mechanisms: (1) pre-registration and trusted third-party delegation (e.g., via NAIRR, academic institutions, or accredited NGOs), and (2) transparent and independently reviewed appeals processes for suspended accounts. These measures are designed to distribute the operational and reputational risk of granting research access, and to check gatekeeping and favoritism tendencies inherent in present access program regimes.

Figure 1: A summary of the mutual commitments and scope of a legal safe harbor and technical safe harbor framework for AI evaluation, including the relationships to existing security research and researcher access programs.

Structural and Practical Incentives Inhibiting Independent Research

AI developers’ policies are demonstrably misaligned with the needs of the security and AI safety research communities. Empirical observations in the paper highlight themes of:

• Chilling Effects: Repeated suspensions and lack of appeals for researchers conducting adversarial or red teaming work. Incidents are documented, including bans following disclosure of plagiarism detection and copyright-related investigations, with tangible personal and professional costs.
• Non-Uniform Access and Favoritism: Access to APIs and deeper system interfaces is often extended opaquely, with bias toward well-networked or institutionally favored parties, further skewing the research focus and diversity.
• Ambiguity and Unclear Norms: Lacking prospective guarantees or clear, cross-company protocols for responsible disclosure, approval criteria, or engagement mechanisms.
• Misaligned Incentives: Researchers gravitate toward less sensitive or lower-risk system flaws, leading both to overall under-reporting of critical vulnerabilities and to misattribution of harmful behaviors.
• Inadequate Depth of Access for Evaluation: The contrast between open and closed models (e.g., Llama 2 vs. GPT-4) underscores the impact of technical restrictions on audit completeness, reproducibility, and interpretability.

These conditions, if left uncorrected, risk reproducing known failures of social media platforms in the domains of transparency, bias, and harm mitigation, as extensively documented in the literature on platform governance.

Implementation Considerations and Policy Implications

The proposals are grounded in parallels with the evolution of security research safe harbors (e.g., vulnerability disclosure, bug bounty models), but extended to the broader scope of AI safety, which encompasses sociotechnical and emergent harms not strictly reducible to classic security issues. They are structured around ex post assessment of researcher conduct, enabling pre-disclosure flexibility while retaining legal levers against genuinely malicious actors. The suggested intermediated model, leveraging entities such as universities or NAIRR, is already in service for platform data access in social media, and is credible as a mechanism for scalable researcher access in AI.

Key implementation details include:

• Pre-registration Platforms: Comparable to OpenAI’s Researcher Access Program, but with streamlined policies for review and eligibility criteria independent of vendor favoritism.
• Disclosure and Appeals Mechanisms: A well-defined, auditable process with deadlines, transparent decision-making, and escalation to external review if required.
• Scope Management: Explicit ties of safe harbor eligibility to responsible disclosure practices, avoidance of privacy violations, and compliance with jurisdiction-specific regulation.
• Residual Legal Gaps: Recognition that only civil liability can be waived by vendors, and the need to lobby for statutory safe harbors to fully protect researchers from criminal liability in frontier areas of AI system audit.

Related and Parallel Initiatives

The paper contextualizes its recommendations within convergent external proposals (Hacking Policy Council, Abdo et al., Algorithmic Justice League) and emerging regulatory frameworks (EU AI Act, US Executive Order on AI, OMB directives, Canadian voluntary codes). These initiatives all seek to similarly broaden independent, third-party participation; harmonize standards for adversarial testing and audit; and render AI safety evaluation a first-class requirement in high-stakes model deployment.

Theoretical and Practical Implications

Contradictory findings and claims:

• The analysis makes the explicit claim that current security-only safe harbors are fundamentally insufficient and that the scope must be extended to all forms of AI safety research, a stance with both legal and ethical ramifications for corporate governance.
• The authors further emphasize that voluntary internal/industry audits cannot substitute for external adversarial investigation due to intrinsic conflicts of interest.
• The assertion that safe harbor frameworks need not trigger increased model misuse, if tied to post-hoc (i.e., ex post) compliance with responsible disclosure, is a strong claim that challenges narratives around the necessity of restrictive moderation for platform safety.

From a theoretical standpoint, the proposal reinforces the position that external auditing functions are a necessary—though not sufficient—component of any AI risk governance regime, a point now recognized with increasing formalization in ongoing academic and policy literature. The approach also provides a repeatable and extensible template for other domains in which platform or model transparency must be balanced against proprietary risk and potential for abuse.

Anticipated Future Developments

Given the present trajectory of sociotechnical system regulation, it is likely that multi-jurisdictional safe harbor mechanisms will become central in frameworks for foundation model deployment, both through voluntary industry standardization and mandated statutory reform. The design of pre-registration, multi-stakeholder appeal mechanisms, and external review boards for access and enforcement will become increasingly sophisticated, and their operation will require ongoing input from both academic communities and civil society actors. Additionally, the boundaries of "good faith" AI safety research will be tested and iterated as the set of emerging risks from generative AI continues to outpace current regulatory regimes.

Conclusion

Legal and technical safe harbors are framed as necessary guardrails to realign the incentives and procedural affordances of generative AI development with the requirements of independent safety and trustworthiness research. Voluntary adoption of these frameworks by AI vendors—and/or their canonical enshrinement in national and transnational policy—will be critical to establishing participatory, accountable, and reproducible evaluation processes that are ultimately robust against both known and emergent AI risks. These steps are foundational for the pluralistic, global-scale oversight demanded by the societal penetration of highly capable generative AI.