This is because until the last several decades, people were not generating massive clouds of data that open up new possibilities for surveillance. The Fourth Amendment, which protects against unreasonable search and seizure, was written when gathering information meant entering people’s homes.
Later laws, such as the Foreign Intelligence Surveillance Act of 1978 or the Electronic Communications Privacy Act of 1986, were passed when surveillance included wiretapping phone calls and intercepting emails. Most laws governing surveillance were on the books before the advent of the Internet. We were not creating huge trails of data online, and the government did not have sophisticated tools to analyze the data.
Now we do, and AI supercharges what kind of monitoring can be done. “What AI can do is it can take a lot of information, none of which is sensitive in itself, and therefore none of which is regulated in itself, and it can give the government a lot of powers that the government didn’t have before,” Rosenstein says.
AI can combine disparate pieces of information to detect patterns, draw conclusions, and build detailed profiles of people at scale. And as long as the government collects the information legally, it can do whatever it wants with that information, including feeding it to AI systems. “The law has not caught up with the technological reality,” says Rosenshtein.
While surveillance can raise serious privacy concerns, the Pentagon may have legitimate national security interests in collecting and analyzing data on Americans. “To gather information about Americans, it has to be for a very specific subset of missions,” says former Pentagon military intelligence officer Loren Voss.
For example, a counterintelligence mission may need information about an American who is working for a foreign country, or plotting to engage in international terrorist activities. But targeted intelligence can sometimes be limited to collecting more data. “This kind of collection irritates people,” Voss says.
legitimate use
OpenAI says its contracts now include language that says the company’s AI system “shall not be knowingly used for domestic surveillance of U.S. persons and citizens,” consistent with relevant laws. The amendment clarifies that it prohibits “the intentional tracking, surveillance, or monitoring of U.S. persons or citizens, including the procurement or use of commercially obtained personal or identifiable information.”
But the added language may not do much to override the clause that the Pentagon can use the company’s AI system for all lawful purposes, which may include collecting and analyzing sensitive personal information. “OpenAI can say whatever it wants in its agreement… but the Pentagon will use the technology it considers legitimate,” says Jessica Tillipman, a law professor at George Washington University Law School. This may include home surveillance. “Most of the time, companies won’t be able to stop the Pentagon from doing anything,” she says.
