That’s because until the last several decades, people weren’t generating massive clouds of data that opened up new possibilities for surveillance. The Fourth Amendment, which protects against unreasonable search and seizure, was written when collecting information meant entering people’s homes. 

Subsequent laws, like the Foreign Intelligence Surveillance Act of 1978 or the Electronic Communications Privacy Act of 1986, were passed when surveillance involved wiretapping phone calls and intercepting emails. The bulk of laws governing surveillance were on the books before the internet took off. We weren’t generating vast trails of online data, and the government didn’t have sophisticated tools to analyze the data. 

Now we do, and AI supercharges what kind of surveillance can be carried out. “What AI can do is it can take a lot of information, none of which is by itself sensitive, and therefore none of which by itself is regulated, and it can give the government a lot of powers that the government didn’t have before,” says Rozenshtein. 

AI can aggregate individual pieces of information to spot patterns, draw inferences, and build detailed profiles of people—at massive scale. And as long as the government collects the information lawfully, it can do whatever it wants with that information, including feeding it to AI systems. “The law has not caught up with technological reality,” says Rozenshtein.

While surveillance can raise serious privacy concerns, the Pentagon can have legitimate national security interests in collecting and analyzing data on Americans. “In order to collect information on Americans, it has to be for a very specific subset of missions,” says Loren Voss, a former military intelligence officer at the Pentagon. 

For example, a counterintelligence mission might require information about an American who is working for a foreign country, or plotting to engage in international terrorist activities. But targeted intelligence can sometimes stretch into collecting more data. “This kind of collection does make people nervous,” says Voss. 

Lawful use

OpenAI says its contract now includes language that says the company’s AI system “shall not be intentionally used for domestic surveillance of U.S. persons and nationals,” in line with relevant laws. The amendment clarifies that this prohibits “deliberate tracking, surveillance or monitoring of U.S. persons or nationals, including through the procurement or use of commercially acquired personal or identifiable information.”

But the added language might not do much to override the clause that the Pentagon may use the company’s AI system for all lawful purposes, which could include collecting and analyzing sensitive personal information. “OpenAI can say whatever it wants in its agreement … but the Pentagon’s gonna use the tech for what it perceives to be lawful,” says Jessica Tillipman, a law professor at the George Washington University Law School. That could include domestic surveillance. “Most of the time, companies are not going to be able to stop the Pentagon from doing anything,” she says.