Biden's AI Spying Rules Are A Last Gift of Power To Trump

Seems like a bad idea to introduce artificial intelligence into surveillance while the next president focuses on retribution. But Great Power Competition wills it

Edited by Sam Thielman

I'M WRITING IRON MAN FOR MARVEL COMICS! IF YOU PUT IT ON YOUR PULL LIST AT A COMIC STORE (AN ONGOING SUBSCRIPTION WHERE THE STORE RESERVES EACH ISSUE FOR YOU), I'LL SEND YOU FREE STUFF! EMAIL SOME KIND OF RECEIPT TO FOREVERWARS.BULLPEN@GMAIL.COM AND THE SWAG WILL BE YOURS! CALL OR GO TO YOUR COMIC STORE TODAY TO TELL THEM YOU WANT IRON MAN #3 BECAUSE THIS IS THE LAST DAY TO PREORDER! 

SHORTLY AFTER DONALD TRUMP won the presidency the first time, I was working at The Guardian, and considering the same question as many around the country: What would he do with his newfound power? Applying that question to my beat, I contacted the White House to ask if soon-to-be-former President Barack Obama was going to curtail the drone strikes that he had expanded and institutionalized before they were in the hands of the Nativist-in-Chief. I thought this was a pretty reasonable line of inquiry. 

The Obama team did not. There would be no post-election inhibitions on drone strikes or anything else. That, I was told, could not be how counterterrorism policy was made. The Obama team had to presume sobriety, probity and responsibility amongst their successor custodians of what they were no longer calling the War on Terror. We all know what followed. 

I thought of that when I saw that President Biden's team cobbled together rules for "national security" usage of artificial-intelligence tools shortly before leaving office. That guidance, released in late October, had an annex for the intelligence agencies and the military about what to do when using Americans' data for training these AI tools. Charlie Savage of the New York Times, an excellent reporter and a friend of mine, got that annex and presented it to readers last week, leavened by an interview with Josh Geltzer, the legal adviser to the National Security Council. 

I want to mention here that I've known Josh for years and consider him a responsible, forward-thinking person, whatever our disagreements. But when I read lines in Charlie's piece like "The Biden legal team, Mr. Geltzer said, worried that applying [existing surveillance] privacy rules at the point when A.I. systems are acquired would severely inhibit agencies’ ability to experiment with the new technology," I think: Here we go again. 

No matter how often the FBI and the NSA violate the rules, intelligence officials—and especially intelligence attorneys—frequently assert that those rules, and the broader process they uphold, are the difference between responsible surveillance and freedom-threatening spying. Yet whenever technological developments create new opportunities for surveillance, the surveillance-relevant agencies bemoan the unreasonable inhibitions that existing privacy laws or rules present. NSA Director Michael Hayden, when crafting  the constellation of bulk surveillance programs known as STELLAR WIND and which live on as the Foreign Intelligence Surveillance Act’s (FISA) notorious Section 702, reasoned after 9/11 that rules for surveilling the internet shouldn't depend on laws written with telephonic communication in mind. The result is an institutionalized threat to your freedoms of association and from illegal search and seizure. 

As you'll see from Charlie's story and the Biden guidance itself, the gist is that the intelligence agencies don't always have to consider themselves bound by rules about domestic intelligence collection when they acquire bleeding-edge ("frontier") AI tools that were trained using domestic data—the stuff that you and I generate when we engage in most of our economic and social activity, thanks to surveillance capitalism. Remember that without lots of collected data, an AI system can't "train" itself to function as advertised. The point of the order is to say that the intelligence agencies can experiment with frontier AI models purchased from AI companies, and then place a belt of procedure around it to call this usage lawful, even when it launders massive amounts of Americans' data collected without a warrant, because the AI vendors didn't need a warrant to acquire it. [Whether or not it’s even legal for private companies to collect the data necessary to train these tools in the first place is far from a settled question—Sam.] 

In reading over this annex, when the intelligence agencies seek "to modify or augment" a frontier-AI model—that is, to train the model on privacy-protected data—they are to seek "guidance from the relevant General Counsel's office, Chief AI Officer, and senior privacy and civil liberties officials." Ask someone from a different office is what counts for checks and balances in intelligence work. And that's what the Biden annex recommends even for highly sensitive and potentially life-changing information harvested through FISA, including FISA Section 702. Intelligence agencies "should not modify or augment a FM using FISA-obtained or FISA-derived information without coordination with the Department of Justice and Office of the Director of National Intelligence," they intone. 

Those entities are about to be run by Matt Gaetz and Tulsi Gabbard. 

Gaetz and Gabbard are going to use them to say: Computer, show me where to find people to deport, bankrupt and imprison. If the "Stop Terrorist Financing" bill that Darryl Li and I wrote about last week—and which is back for a vote in the House Rules Committee this afternoon—becomes law, they'll use those frontier AIs to say: Computer, show me which charities and foundations can be connected through webs of association to Palestinians, who we define as Hamas. And the annex does not always require the intelligence agencies to keep records of what will soon be frontier-AI-enabled searches of Americans' data. In cases where relevant Attorney General guidelines are ambiguous, the intelligence agencies are to "consider what documentation, if any, is appropriate for prompts of a [frontier model] that are designed to return U.S. person information." If any! As Elon Musk famously said, let that sink in. 

Charlie's story does a good job of demystifying an important point: The government isn't going to be making artificial intelligence infrastructure. It's going to be buying it from vendors. AI-relevant capital backed Trump bigly and, as the Times noted yesterday, it expects returns on its investment. Marc Andreessen's "venture capital firm has invested billions of dollars in start-ups that specialize in artificial intelligence tools," the Times reminds. Palantir co-founder Joe Lonsdale, another big AI backer, believes the "current regulatory regime still favors the legacy defense corporations and crowds out upstarts." Now, as FOREVER WARS has written about, we're on the verge of a new Military-AI Complex, and your privacy is a hindrance to its extreme profitability. 

The bitter irony of the Biden AI/surveillance annex is that the Trump people will do their own thing anyway, much as they did with Obama's drone-strike "guidance." But that doesn't make the annex harmless. Its harm comes through establishing bureaucratic precedent—specifically, the bureaucratic precedent that intelligence (civilian or military) usage of frontier AI is not inhibited by existing privacy protections except in the most bright-line cases. When they don't have such bright lines—and you can bet that eager intelligence lawyers will make the bright lines murky—privacy protections depend on the probity of officials whom (checks notes) Trump is putting in office to conduct internal purges and harass domestic enemies. Would it have been so hard for the Biden team to, say, declare a moratorium on intelligence AI usage until greater discussion amongst more varied stakeholders than the CEOs Biden met with? 

That's the weakest-sauce, liberal-ass, basic-ass restriction I could think of. And yet the answer is yes, it would have been too hard. The reason for that is that the guiding strategic construct behind "national security" usage of AI is that whatever the U.S. doesn't do in the realm of artificial intelligence, the Chinese will. A consensus view of the issue across party lines is that AI is analogous to the space race, a zero-sum quest for dominance that will determine an advantageous position for the victor across generations. Great Power Competition's downstream effects are to treat your privacy rights like the bones of ancient workers crushed under the bricks of a pyramid. Unfortunate, perhaps, but what right do you have to get in the way of maintaining U.S. primacy? 

TODAY IS THE FINAL DAY TO PREORDER IRON MAN #3! I know it's weird to say this given that IRON MAN #2 doesn't hit stores until next week—please also buy that—but it's very important that this issue has a strong commercial showing. Now, our book has had a way better commercial showing than I ever expected: IRON MAN debuted as the eighth best selling comic for October 2024—and we only hit the stands on October 23! But what goes up for #1 can often come down for #3. Attrition is natural in the monthly comics business, and the comics companies tend to look at issue-3s and 4s as indicators of whether a book is viable for the long haul. And I would like to keep writing IRON MAN beyond what I'm currently contracted for! 

Remember—if you tell a comic book store you want IRON MAN, they will reserve copies of the book for you each month, a system known as a "pull list," so they're waiting for you in the store! And if you do this, send evidence that you've "pulled" IRON MAN to foreverwars.bullpen@gmail.com, because I will then mail you this amazing sticker set at my expense (unless you're outside the U.S., Canada, and Mexico, at which point I'll need you to cover postage costs)! 

Here's an unreleased, mysterious image from IRON MAN #2, out next week! Words by me, art by Julius Ohta, colors by Alex Sinclair, letters by VC's Rob Caramanga!

Here's a sneak preview of issue 3, the one I really need you to pre-order, and you can even use this website to connect to your nearest comic store so they can save it for you! Look at that sword! Look at that Whilce Portacio (!!!) variant cover!

WANT TO HEAR ME TELL MY JAMES GANDOLFINI STORY? It's a good one, if I say so myself. Van Jackson and Lyle Jeremy Rubin had me on their war-movies podcast Bang-Bang to talk about In The Loop, the Armando Iannucci movie starring the late great Tony Soprano that I consulted on. They're determined to give me more credit for this movie than I deserve. You can listen here or on your favored podcatcher.

LET'S CHECK IN ON THE RIGHT, where J. Michael Waller of the Frank Gaffney-core Center for Security Policy—see REIGN OF TERROR for more on them—is proposing that Trump use the staid and usually backwater-ish President's Intelligence Advisory Board as a means of imposing loyalty to Trump among the intelligence agencies.

SUPPORT JOURNALIST RANA AYYUB, who has come under horrific harassment in India for doing her job. (Via Sarah Thankam Mathews.) 

VIA HELL GATE, INDICTED NYC MAYOR ERIC ADAMS STOPPED BY TRUMP'S ENTOURAGE AT THE MIKE TYSON-JAKE PAUL FIGHT, surely to ask for a pardon for his blatant corruption before the prosecutors get time to move to trial. I'm sure Hizzoner will settle for a more pro-Eric prosecutor at the Southern District of New York than Damian Williams. 

SPEAKING OF BROOKLYN'S FINEST, Jonathan Lethem has an exquisite and personal essay on Philip K. Dick and Palestine for the Paris Review that you simply have to read. It's Lethem, so of course it's well-crafted. But using Dick's conceptions of the future to understand his own blind spots on Palestine is really the sort of thing that only a great and honest writer can offer.  

AND SPEAKING OF PALESTINE, meet Steven Witkoff, "Trump's point person for the Jewish-American business community," who's playing the role of Middle East Czar/Envoy Jared Kushner in the Second Trump Administration. He has no diplomatic background, he's a big Israel guy, and his role in an escalating genocide and regional war is "to speak directly to Israeli, Palestinian and Arab leaders." If you're a fan of Ta-Nehisi Coates' CAPTAIN AMERICA run, you're already thinking: The Legend of Steve. 

WALLER VS. WILDSTORM, the superhero spy thriller I co-wrote with my friend Evan Narcisse and which the masterful Jesús Merino illustrated, is available for purchase in a hardcover edition! If you don't have single issues of WVW and you want a four-issue set signed by me, they're going fast at Bulletproof Comics! 

No one is prouder of WVW than her older sibling, REIGN OF TERROR: HOW THE 9/11 ERA DESTABILIZED AMERICA AND PRODUCED TRUMP, which is available now in hardcover, softcover, audiobook and Kindle edition. And on the way is a new addition to the family: THE TORTURE AND DELIVERANCE OF MAJID KHAN.