LessWrong (Curated & Popular)
"OpenAI’s surveillance language has many potential loopholes and they can do better" by Tom Smith
05 Mar 2026
Chapter 1: What is the new surveillance language in the OpenAI-Department of War agreement?
OpenAI surveillance language has many potential loopholes and they can do better. By Tom Smith. Published on March 4, 2026. The author is not affiliated with the Department of War or any major AI company. There's a lot of disagreement about the new surveillance language in the OpenAI Department of War agreement. Some people think it's a significant improvement over the previous language.
Others think it patches some issues but still leaves enough loopholes to not make a material difference. Reasonable people disagree about how a court will interpret the language if push comes to shove. But here's something that should be much easier to agree on. The language as written is ambiguous, and OpenAI can do better.
Chapter 2: What ambiguities exist in the new surveillance language?
I don't think even OpenAI's leadership can be confident about how this language would be interpreted in court, given the wording used and the short amount of time they've had to draft it. People with less context and resources will find it even harder to know how all the ambiguities would be resolved.
Some of the ambiguities seem like they could have been easily clarified despite the small amount of time available, which makes it concerning that they weren't. But more importantly, it should certainly be possible and worthwhile to spend more time on clarifying the language now.
Employees are well within their rights to ask for further improvements until their own legal counsel can tell them that the language clearly prohibits what they're worried about. Heading. What the new language says. Please note that, with only a few paragraphs rather than the full contract, it's impossible to conclude anything with confidence.
As Nathan Calvin explains, contracts often contain clauses which allow the earlier clauses to be disregarded or interpreted in unintuitive ways.
Given how many unjustifiably rosy interpretations of this contract Sam Altman has painted, I will not place much weight in small snippets until the full contract has been shared with someone who can verify that it doesn't substantially modify the parts that are public.
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Chapter 3: Why is it important to address these ambiguities in legal language?
But with that said, let's analyse what we have. The new amendment adds two clauses. Consistent with applicable laws, including the Fourth Amendment to the United States Constitution, National Security Act of 1947, FISA Act of 1978, the AI system shall not be intentionally used for domestic surveillance of U.S. persons and nationals.
For the avoidance of doubt, the Department understands this limitation to prohibit deliberate tracking, surveillance, or monitoring of U.S. persons or nationals, including through the procurement or use of commercially acquired personal or identifiable information. SAM's internal post frames these as putting the issue to rest. Reading them carefully, they don't. Heading Ambiguities
Here's a non-comprehensive list of ambiguities that could allow mass surveillance, in the colloquial sense of the term.
Chapter 4: What specific improvements can be made to clarify the language?
Intentionally and deliberate, both clauses restrict only intentional or deliberate surveillance. Tech reporter Mike Marsnick notes, OpenAI has effectively adopted the Intelligence Community's dictionary.
a dictionary in which common English words have been carefully redefined over decades to permit the very things they appear to prohibit, under the legal framework OpenAI has explicitly agreed to operate within, by citing various statutes, the NSA can target a foreign person, scoop up vast quantities of Americans' communications in the process, retain all of it, and search through it later.
And none of that counts as surveillance of US persons by the government's own definitions. Many commenters have said similar things. Jessica Tillipman, Associate Dean for Government Procurement Law Studies at GW Law, says, quote, I agree it's better, but I think the Gov can drive a truck through that intentionally a language. End quote.
Tillipman is, according to another lawyer we asked, probably the nation's leading expert on government procurement law. Jeremy Howard writes, quote, Here's the informal, unofficial etc.
Chapter 5: How does the interpretation of 'intentional' and 'deliberate' affect surveillance concerns?
answer from our law firm CEO. TLDR, this language doesn't seem to add much to the previously shared contract details. I'm concerned, surprised that the bar doesn't extend to negligence or at minimum recklessness.
The hierarchy of mens rea is purposely greater than knowingly greater than recklessly greater than negligently and courts often read intentionally to be somewhere in between purposely and knowingly. Intentionally is a higher bar and more difficult to prove than recklessness or negligence. End quote. Legal advocates for safe science and technology rights. Quote.
The words intentional and deliberate leave a lot of wiggle room, especially for incidental collection and analysis. If history is any guide, the government is likely to exploit that wiggle room to allow surveillance most people would assume the language would prohibit.
Chapter 6: What potential loopholes could allow for mass surveillance?
End quote. Personal or identifiable information, this phrase is not defined in the agreement. Is metadata included in this definition? What about anonymized or pseudonymized data that an AI system could trivially de-anonymize? What about data where US person identifiers are initially redacted, as is standard practice in national security work, but could be unmasked later?
The contract doesn't address any of this, but the most liberal interpretations would leave little protections against surveillance. Tracking, surveillance, or monitoring.
Brad Carson, former General Counsel to the Army, former Undersecretary of the Army, former Undersecretary of Defense, points out that surveillance could refer to the FISA definition of surveillance, which doesn't include analysis of commercial data.
He also says that tracking and monitoring could be argued to require persistence over time so that it doesn't apply to static queries like tell me who went to the mosque in Tulsa and booked a trip to New York. If so, the contract wouldn't block the DAO from doing the kind of analysis we're worried about.
Chapter 7: Why is employee scrutiny important in the context of contracts?
Consistent with applicable laws, the AI system shall not be intentionally used for domestic surveillance of US persons and nationals. The clause opens by framing the prohibition as consistent with the Fourth Amendment, the National Security Act of 1947, and FISA. But these laws do not categorically ban domestic surveillance of US persons in the way most people use that phrase.
See here for more on this. The problem is that the second half of the sentence, the AI system shall not be intentionally used for domestic surveillance of US persons and nationals, could be read as being operationalized by the laws. If so, any system that complies with the law would comply with this clause. This is a problem when we're concerned about a type of lawful use of these systems.
For the avoidance of doubt, the department understands this limitation to The second clause is framed as the department's stated understanding of the first clause, rather than as an additional prohibition. This leaves open the question about whether the stated understanding is a plausible interpretation of the first line, or what happens if new information changes the department's understanding.
Chapter 8: How can OpenAI improve its contractual language for better clarity?
I don't know the answer, but it does create unnecessary ambiguity. Brad Carson, former General Counsel to the Army, etc., as mentioned above, writes. Quote. And, a hypothetical evil general counsel, says, I particularly like that part where we say, rather strangely but certainly meaningful in some occult way, the department understands rather than simply this limitation prohibits.
I can probably argue that the latter is stronger than the former, so it must be meaningful in a way that helps my evil ways. End quote. Heading. Why this isn't unreasonable nitpicking. Some of this may seem like unreasonable nitpicking, but I really think it isn't.
When experts focus on seemingly minor matters of phrasing, like in the quotes above, that's because they know that precise phrasing often does have huge implications in national security law. These are the kinds of loopholes the government can find when it tries. And the concern may not be hypothetical.
There's reporting that the Department of War specifically wants permission to use AI for the kind of analysis of commercial data that this contract is attempting to block. The Atlantic writes, quote, Anthropic's team was relieved to hear that the government would be willing to remove those words, but one big problem remained.
On Friday afternoon, Anthropic learned that the Pentagon still wanted to use the company's AI to analyze bulk data collected from Americans. That could include information such as the questions you ask your favorite chatbot, your Google search history, your GPS-tracked movements, and your credit card transactions, all of which could be cross-referenced with other details about your life.
Anthropic's leadership told Hegsther's team that was a bridge too far, and the deal fell apart. End quote. There's also reporting from the New York Times on this. We don't know much about the sources, but I think this is still more than enough reason to ensure that the contract actually would block someone who wanted to analyze Americans' bulk data.
And in general, in order for a contract to be effective, it needs to constrain someone's actions even when they're trying their best to escape it. The point of a contract is that, if someone breaks it, then you expect to win a court fight against someone who argues against you as hard as they can.
And as we've seen, when the DAO doesn't get what they want, they're capable of fighting pretty dirty. Furthermore, I think it's clear that OpenAI's original contract was much too weak and was only amended as a result of pressure from employees and the public. This indicates that we can't trust OpenAI's default process to produce good language without outside pressure.
Since pressure from employees and the public seems necessary here, some employees and members of the public must be evaluating these contracts as critically as if they were themselves going to sign on to them. And that's a high bar. Another question some people have raised is Why didn't Anthropic get this level of scrutiny when first signing on to work with the DAO?
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