ACLU seeks AI records from NSA, Defense Department in new lawsuit

The American Civil Liberties Union is seeking the disclosure of records related to the National Security Agency’s use of artificial intelligence, as the Biden administration emphasizes transparency surrounding use of the technology in the government.

In a Thursday complaint, the ACLU asked the U.S. District Court for the Southern District of New York to compel the release of documents detailing the agency’s integration of the technology and plans for the future. Despite the agency’s public comments about its AI efforts and past pledges to be transparent, those documents haven’t yet been released, the ACLU argued.

“Immediate disclosure of these records is critical to allowing members of the public to participate in the development and adoption of appropriate safeguards for these society-altering systems,” the ACLU said in its filing, which was first reported by Bloomberg Law.

In addition to the NSA, the complaint also names the Department of Defense and the Office of the Director of National Intelligence — which oversee the spy agency — as plaintiffs.

The Freedom of Information Act lawsuit comes as the Biden administration has underscored the need for transparency in the use of AI by the government. In an Office of Management and Budget memo released last month, the administration expanded what civilian agencies are required to report in their annual, public AI use case inventories, adding requirements for safety- and rights-impacting uses. Certain intelligence community agencies and DOD, however, continue to be exempt from that process.

“Transparency is one of the core values animating White House efforts to create rules and guidelines for the federal government’s use of AI, but exemptions for national security threaten to obscure some of the most high-risk uses of AI,” Patrick Toomey, deputy director of the ACLU’s National Security Project who is representing the civil rights organization, told FedScoop.

Toomey said the NSA has described itself as a leader among the intelligence agencies in the development and deployment of AI, and officials have noted that it’s using the technology to gather information on foreign governments, assist with language processing, and monitor networks for cybersecurity threats. 

“But unfortunately, that’s about all we know,” Toomey said. “And as the NSA integrates AI into some of its most profound decisions, it’s left the public in the dark about how it uses AI and what safeguards, if any, are in place to protect everyday Americans and others around the world whose privacy hangs in the balance.”

The complaint pointed to several actions the NSA has taken on AI, including a joint evaluation of the agency’s integration of AI, conducted by its inspector general and DOD, and studies and roadmaps NSA has completed about its use of the technology.

The specific documents being requested include an October 2022 report from DOD and NSA titled “Joint Evaluation of the National Security Agency’s Integration of Artificial Intelligence,” several roadmap documents created by NSA starting in January 2023, and documents related to the agency’s proposed uses of AI and machine learning created on or after January 2022.

The NSA didn’t immediately respond to FedScoop’s request for comment on the lawsuit. 

While the intelligence community is exempt from the inventory process that other civilian agencies must complete, President Joe Biden’s October 2023 executive order on AI required the development of a memo on the governance of AI that’s used for national security, military or intelligence. That memo is required to be produced 270 days after the issuance of the order. 

Toomey said the ACLU is hopeful that memo “will incorporate some of the very important transparency principles that the Biden administration and even the intelligence agencies have publicly committed themselves to.”