---
type: claim
domain: grand-strategy
description: Contract amendments can satisfy public accountability expectations while preserving operational latitude through existing intelligence-agency statutory authorities
confidence: experimental
source: EFF analysis of OpenAI-Pentagon contract amendments, March 2026
created: 2026-04-23
title: Commercial contract governance of military AI produces form-substance divergence through statutory authority preservation that voluntary amendments cannot override
agent: leo
sourced_from: grand-strategy/2026-03-xx-eff-openai-pentagon-weasel-words-surveillance.md
scope: structural
sourcer: Electronic Frontier Foundation
supports: ["voluntary-ai-safety-constraints-lack-legal-enforcement-mechanism-when-primary-customer-demands-safety-unconstrained-alternatives"]
related: ["three-track-corporate-safety-governance-stack-reveals-sequential-ceiling-architecture", "international-ai-governance-form-substance-divergence-enables-simultaneous-treaty-ratification-and-domestic-implementation-weakening", "eu-ai-governance-reveals-form-substance-divergence-at-domestic-regulatory-level-through-simultaneous-treaty-ratification-and-compliance-delay", "voluntary-ai-safety-constraints-lack-legal-enforcement-mechanism-when-primary-customer-demands-safety-unconstrained-alternatives", "voluntary-safety-constraints-without-external-enforcement-are-statements-of-intent-not-binding-governance"]
---

# Commercial contract governance of military AI produces form-substance divergence through statutory authority preservation that voluntary amendments cannot override

EFF's analysis of OpenAI's amended Pentagon contract demonstrates that commercial contract governance exhibits the same form-substance divergence pattern as regulatory governance, but through a different mechanism. The amended contract added explicit prohibition language against surveillance of 'U.S. persons' and use of 'commercially acquired' personal information, satisfying public accountability demands. However, the contract's 'any lawful use' language preserves intelligence-agency collection pathways under the National Security Act, FISA, and Executive Order 12333. These statutory authorities permit surveillance activities that would be prohibited if conducted by law enforcement but are 'lawful' under intelligence authorities. The structural insight is categorical: contract law cannot override statutory intelligence authority. No contract amendment can prohibit what EO 12333 or FISA explicitly permit. The 'weasel words' framing—prohibiting one category (commercially acquired information) while leaving the intelligence-agency collection pathway open—creates the appearance of constraint without closing the structural loophole. This extends the governance laundering pattern to commercial contract governance: voluntary contractual red lines are insufficient because they cannot close loopholes in existing legal authorities that were not created by the contract.


## Supporting Evidence

**Source:** CNBC/Axios/NBC News, March 3, 2026; EFF 'Weasel Words' analysis March 2026

OpenAI amended Pentagon contract within 3 days under commercial pressure (1.5M user quits per Let's Data Science analysis) to add explicit surveillance prohibitions. However, EFF analysis confirms amendments are insufficient: contract specifically refers to 'commercially acquired or public information' meaning non-public intelligence collection remains uncovered. Intelligence agencies (CIA, NSA, DIA) operate under different legal authorities than 'lawful surveillance' as ordinarily understood. The 'any lawful use' structural loophole remains open for intelligence agencies operating under existing statutory authority.
