Government AI Is Coming for Your Data

The government wants to use AI to analyze Americans’ information obtained without a warrant though purchases from data brokers and “incidental” collection from foreign intelligence surveillance. Congress must act now and demand closures to these loopholes that undermine our Constitutional and statutory rights before any renewal of Section 702 of the Foreign Intelligence Surveillance Authority.

According to a New York Times story, talks between Anthropic and the Department of Defense (DOD) regarding the use of Anthropic’s AI systems collapsed after Anthropic insisted on safeguards to prevent the use of its AI for the mass surveillance of Americans. The story states that the government specifically wanted Anthropic “to allow for the collection and analysis of unclassified, commercial bulk data on Americans, such as geolocation and web browsing data.” The government buying data to avoid constitutional or statutory protections is known as the data broker loophole, and the implications of allowing the government to simultaneously buy massive amounts of Americans’ data while applying advance AI systems to this data cannot be understated.

The New York Times story spotlights the fact that the government wants to use the data broker loophole to warrantlessly spy on Americans en masse with the help of AI. This conflict between Anthropic and the DOD comes at a time when Congress is considering the renewal of Section 702 of the Foreign Intelligence Surveillance Act (FISA). Section 702 is a surveillance authority that collects vast amounts of foreign communications data, but in doing so “incidentally” collects Americans’ communications. The government claims the right to conduct warrantless searches of the “incidentally” collected communications—a practice known as the backdoor search loophole. A New Yorker story suggest that, ironically, Anthropic was OK with its AI tools being used to analyze Section 702 data that includes Americans’ communications.

Both these loopholes allow the government to get around the Constitutional protections of the Fourth Amendment. The data broker loophole is also a workaround to previous statutory prohibitions against FISA bulk data collection. The USA FREEDOM Act of 2015 explicitly prohibited domestic bulk data collection under FISA and now the data broker loophole serves to undermine that prohibition. And since the 2015 reforms, numerous examples have come to light of the government abusing the 702’s backdoor search loophole. Congress now has an opportunity to close both these loopholes—an opportunity that has become all the more important in light of the government’s desire to use AI to conduct surveillance on Americans.

The conflict between Anthropic and the DOD is a fire alarm we should all heed—the threat to our privacy posed by unaccountable AI systems scrutinizing the massive amounts of data collected about us all cannot be underestimated. And that threat goes far beyond privacy. It represents an existential threat to our democracy. We are at the beginning of increasingly powerful AI colliding with the realities of our digitized society of mass datafication fueled by surveillance capitalism.

Data about us is collected through almost every single device that connects to the internet, with our smartphones being the biggest offender. With an endless number of mobile apps available to us on our mobile devices engineered to keep our attention, our smart devices are fertile grounds for data collection. On top of that, there are companies that sell surveillance as a service scanning all our images online, scraping all our social media posts, consolidating all our web browsing, and tracking our cars on the roads through automated license plate readers.

Now, the government wants to use AI to process and analyze billions of data points about innocent Americans. Information that is a window into our lives, creating the basis for inferences as to whether we own guns, what religion we practice, who we associate with, our political leanings and what political issues we are involved in, sensitive medical information, our place of residence, our place of employment, and so much more. No longer limited by the constraints of human capacity to manually sort through data or the shortcomings of previous analytical tools, the government will be able to analyze unthinkable amounts of data. The result will be a growing black box of unaccountable government surveillance that will expand the impact of the state apparatus on more and more innocent people—particularly people critical of the government. This road leads to a dystopian mass surveillance society where we are all under constant scrutiny unless we start reclaiming our privacy now. And that starts with closing the data broker and backdoor search loopholes as part of any reauthorization of section 702 of the Foreign Intelligence Surveillance Act.

The urgency of addressing these issues is why EPIC has endorsed the Government Surveillance Reform Act and the Protect Liberty and End Warrantless Surveillance Act, either of which would close the data broker and backdoor search loopholes. These critical reforms are necessary to protect our privacy, safeguard against government overreach, guarantee our Constitutional rights, and ultimately preserve our democracy. Congress must act now.