The nature of the second Trump administration is that it's such a blunt instrument. It's like we... it is almost certain we will attack all of the issues all at once.
Yes. I'm sure we can fit a Third Amendment violation somewhere in here as well.
Sure. Yeah. Claude has to live in your house now. It's going to be great. This administration is effectively saying if you don't give us absolutely everything that we want, if you don't set up your tools to work the way we want them to work, then we will effectively try to destroy your entire business. And that is an escalation.
Has there been anyone involved in this process who's ever woken up and said to themselves, "Boy, we've managed to redefine the word target to mean anything we want."
Hello and welcome to Decoder. I'm Nilay Patel, editor-in-chief of The Verge. And Decoder is my show about big ideas and other problems. Today we're going to talk about the messy, fast-moving situation at Anthropic, the maker of Claude that now finds itself in a very ugly legal battle with the Pentagon. The back and forth is complicated, but as of a few days ago, the Pentagon had deemed Anthropic a supply chain risk. And Anthropic had filed a lawsuit challenging that designation, saying that the government was violating its first and fifth amendment rights and, quote, seeking to destroy the economic value created by one of the world's fastest growing private companies. I can tell you right now, we're going to be talking about the twists and turns of that case here on Decoder and on The Verge many, many times in the months to come. But today, I want to take a step back and really dig in on one very important part of this situation that hasn't gotten nearly enough attention as things have spiraled out of control: how the United States government does surveillance, the legal authority that allows that surveillance to occur, and why Anthropic was so distrustful of the government, saying it would follow the law when it comes to using AI to do even more surveillance. My guest today is Mike Masnick, the founder and CEO of Techdirt, the excellent and long-running tech policy website. Mike has been writing about government overreach, privacy in the digital age, and other related topics for decades now. And he's an expert on how the internet and the surveillance state have grown up in interconnected ways. You see, there's what the law says the government can do when it comes to surveilling us. There's what the government actually wants to do. And most importantly, there's what the government says the law says it can do, which is often exactly the opposite of what any normal person simply reading the law would think. But to make sense of it all, you really have to know the history. That's what Mike and I set out to explain in this one. Whatever your views on AI and the government, this episode will make it clear that both parties have let the surveillance state get bigger and bigger over time, and we're on the cusp of the biggest expansion yet when it comes to AI. Okay. Techdirt founder and CEO Mike Masnick on Anthropic, the Pentagon, and AI surveillance. Here we go. Mike Masnick, you are the founder and CEO of Techdirt. Welcome to Decoder.
Yeah, I'm glad to be here.
I'm excited to have you on. I was just saying I'm shocked that you've never been on the show before. You and I have been writing and posting around each other for a long time. A lot of Verge policy coverage owes a debt to what you've done at Techdirt. And then what's going on with Anthropic is so complicated but hits so many themes that you have covered for so long. I'm glad you're finally here.
It is a complicated mess of a topic, but I'm excited to be digging in on it.
So, what I want to focus on with you is not the details of whether Anthropic is going to sign a contract with the government or whether OpenAI is going to get that contract instead. I'm confident between the time we record this and the time people listen to it, there will have been more tweets and more things will be different than they were before. What I want to focus on is just one of the two red lines that Anthropic has really laid out. One of them is autonomous weapons. The law there is a little bit more nuanced whether or not the weapons even exist or have already been deployed by Russia in the Ukraine war. I just want to set that aside because I think that is going to come into more focus all on its own schedule. The other red line that I do want to spend a lot of time on is mass surveillance.
Yeah. And there's quite a lot of law here about mass surveillance. There's a lot of history, a lot of controversial history. The entire character of Edward Snowden exists because of controversies around mass surveillance. And it all comes down to, I think you are the one who posted this, the National Security Agency, which is part of the Department of Defense, which we have to call the Department of War now for some reason.
We don't have to do anything.
That's true. Here in America, we don't have to do anything. But the National Security Agency has basically redefined what a lot of words mean out of colloquial English to mean, oh, we can just do surveillance and then every so often there's a scandal when people discover that they're just doing surveillance. So just set the stage there and I don't want to rewind you all the way but it's been quite a lot of time where this pattern has repeated itself.
Yeah. And it sort of depends on how deep you want to go. But the short version is obviously in the post-9/11 world, the US passed the Patriot Act, which had some ability for the government to engage in surveillance which was supposed to be for protecting us against future terrorist threats and over time that got interpreted in interesting ways and there were some limits on that. We also had the FISA court which is a special court that is supposed to review the intelligence community and their activities but has been traditionally a one-sided court. Only one side gets to plead their case to that court and it's all done in secret. And so there's a lot of stuff that was not known. And then there was one other piece in all of this which goes all the way back to Ronald Reagan which is Executive Order 12333, which is supposedly about setting out the rules of the road for intelligence collection. And so you have these three sets of laws, well, a few sets of laws and an executive order that to the public, the parts that you can read seem to say certain things about what our government and the NSA in particular can do in terms of surveillance, which when read with a plain English dictionary, the nature of which you and I probably have and understand, we would come away with a belief that the NSA's ability to surveil Americans was very limited. In fact, to the point that they're supposed to, if they realize that they are surveilling a US person, that they are supposed to immediately stop and cry foul and erase the data and all of this other stuff. And there were rumors for a while that that was not really happening and there were hints and in particular Senator Ron Wyden was very vocal about going on the floor of the Senate and saying, you know, something is not right here and I can't quite tell you what. Or in hearings he would ask intelligence officials, are you or are you not collecting mass data on Americans?
And they would either deflect or in some cases outright lie. And I believe it was one hearing in like 2012 with James Clapper who was the director of national intelligence at the time. He was asked directly on this point and he basically said, "No, we don't collect data on Americans." And that was a big part of what inspired Ed Snowden to leak the reports that he leaked to Glenn Greenwald and Bart Gellman and Laura Poitras as well. So from all of that, what we began to discover was that the NSA has its own dictionary that is somewhat different than the dictionary that you and I use, such that they can interpret words in ways that are different than the plain English meaning of them, including words like target, which feels like kind of a key word. But so, you know, a sort of broad understanding of what this is. In theory, they are only supposed to target people who are not US persons, I think is the phrase. But the way it had been interpreted over time was that anything that mentions that person, anything that is about a foreign person is now fair game, even if that is the communications of a US person. So, if you and I were to text each other and mention a foreign person, that is now fair game for the NSA to collect and to keep and to store. There's a second part of this. I mentioned first the Executive Order 12333 from Ronald Reagan which effectively allowed the NSA as the technology changed over time and the internet grew, it allowed the NSA to tap into foreign communications, but that included any communications that maybe left the US en route somewhere. So, if I'm texting you and a message went from me in California through a fiber optic cable that happened to leave the US, the NSA could put a tap in the part once it's outside the US, collect that information, even if it was just going to you within the US. And then what they could do is keep that information even if it was on US persons. And they could do specific searches on that later, sometimes referred to as backdoor searches. So they collected this information that we believe they weren't supposed to collect in the first place, but they could keep it and they promised, they sort of pinky swore that they would keep it private. But if they did a search and found that you or I mentioned a foreign person, then suddenly it was fair game for them to do whatever they want with. In total, that has turned into a world in which they can basically collect any information that happens to touch outside the US and even if it is entirely between two US persons, if they mention or even hint at someone who is not a US person, suddenly it is fair game to be collected. And from that, we've gotten what appears to be a form of mass surveillance of US persons by an NSA that claims and publicly states that they do not spy on US persons.
How did we get to this point? Right. This is a lot of incremental baby steps. You mentioned James Clapper in 2012. That's the Obama administration. You mentioned Ronald Reagan, that's the 80s. Like we're going through Democrats and Republicans here, right? The war on terror happens in the George W. Bush administration, 9/11 and the Patriot Act happens in the George W. Bush administration. This is a lot of incremental bad things.
Under presidents of both parties, under congresses of both parties. How did this happen?
I mean, the simplest form of it is just that nobody and certainly no president wants to be president during the time when there's a big terrorist attack because that makes them look bad, right? I mean, obviously they also want to protect Americans, right? That's part of their job, I guess. And so, you know, if you have an intelligence community that is basically operating in darkness because that's what intelligence communities do, and they keep coming to you and saying, you know, hey, you know, if we could just get access to this information, it'd be really helpful in preventing a terrorist attack. And there may be cases where that's true, that the intelligence community is able to use this information in a way that works well. But we also are in theory a society of laws and a constitution that we're supposed to obey. But that allowed for the fact that, you know, administration after administration, again, Republican and Democrat, had lawyers who were very clever and who would look through, well, you know, if we sort of position this this way or we state this this way or we interpret this that way, we can get what we want and not technically break the law or not technically violate the Fourth Amendment. The assumption was always like, well, we can sort of bend the law or bend our interpretation of the law and nobody's really ever going to see this or nobody who cares, you know, is really ever going to see this and therefore we'll get away with it.
There's two things there that really jump out at me. One, you know, you and I both read a lot of court decisions and appellate court decisions and Supreme Court decisions and there's a fight in our Supreme Court about how to literally interpret the words in our statutes and our laws.
And I won't get too far into it, but I would say generally the idea that you should just read the words on the page and do what they say is the dominant strain of statutory interpretation in the United States. Right? Like left or right, they both say it. They might argue about some very esoteric fine points of what that actually means, but you should just be able to read these words and do what they say. That's not up for grabs, right? Like we've landed on at least that first pass of what you might call textualism.
How do lawyers of both administrations get this far away from the dominant mode of legal decision-making in our country that both justices of both parties both agree is at least the first step?
I wish I knew the exact answer but you know what I think it is is it's motivated reasoning, right? I mean as a lawyer you are there to sort of defend your client and the success, if you can call it success, of our legal system tends to be based on having an adversarial situation where you have different sides arguing over these things where you kind of, you know, the role of the adjudicator is to narrow in and figure out which side is actually correct. One of the problems with the intelligence community and the setup of it is that you don't have that adversarial situation. And so that makes it easier for one side to justify the argument that they're making because nobody is really pushing back on it. And so you combine that with the overarching fear of another terrorist attack, anything related to national security. So even when you have situations where you have like the FISA court, I mean the FISA court was somewhat famous for effectively being a rubber stamp for many years. I forget the exact numbers but it was something like over 99% of applications that went to the FISA court to allow for surveillance of certain situations were granted. And you know, it's easy to just say, well, if 99%, that's obviously too much. Obviously, those bringing claims to the court, you know, they're picking and choosing. They're not, for the most part, bringing totally crazy claims, but without that adversarial aspect and with a very strongly motivated group of people who think we need to do this or are being told by an administration we need to do this, they'll find ways to do it. And that's where you end up over time.
Has there been anyone involved in this process who's ever woken up and said to themselves, "Boy, we've managed to redefine the word target to mean anything we want."
I mean, obviously you had like Ed Snowden who leaked a bunch of documents. You had John Napier Thai who wrote a piece for the Washington Post in 2014 I believe which sort of revealed the interpretation of Executive Order 12333 and said that's the real issue to pay attention to. You have other people who have sort of spoken up about these things, but for the most part, the people who are involved and working within the administration on intelligence community stuff are sort of bought in to the view of the intelligence community, which is the overriding goal is to protect the country from something bad. And the best way to do that is to have as much information as possible. And like it's easy to be sympathetic to the argument that yes, having more information may allow them to catch something earlier or find something important. But, you know, one, that might not be true. Getting too much information is probably just as bad as too little information because it can often hide the information that is actually useful and the information that you actually need to determine something. But also like we have a constitution in the first place and we have reasons why in theory we're not supposed to allow for mass surveillance without probable cause and as a country that believes in the rule of law we should be able to live up to that. And you know when all this stuff happens in darkness you will tend to lose sight of that.
I think this brings me to Anthropic. Anthropic is primarily an enterprise company. They're good at the government, right? They've built those muscles. They're staffed by people who are really well-versed in some of this stuff. They obviously looked at Pete Hegseth saying, "We want all lawful uses." And they went two levels of interpretation down and said, "Well, your literal belief is that these words do not mean what they say they mean on their face." And so all lawful uses is too big and we want to put some guardrails particularly on mass surveillance. Again, I'm going to bracket out autonomous weapons. That was the other red line, but particularly on mass surveillance. Dario Amodei is out there saying we can do too much. This is too dangerous. This is a Fourth Amendment violation and the tension there is you're saying you're going to comply with these laws that say one thing and they actually now after all this time they mean something completely different and we just don't want to be part of that. That's the fight. I just want to compare that to Sam Altman who, you know, swoops in to say, "We'll do all lawful uses," and then post this long message being like, "Here are all the laws we're going to comply with." And it seems like he didn't know how the NSA had reinterpreted these things and kind of got taken for a ride. And he's since walking it back. Like I'm saying, even as we are recording, I'm confident there are more tweets and everyone's positions have changed and Sam has been walking it back slowly. But it does seem like OpenAI, Sam Altman got roped into reading the statutes on their face and believing what they said. Is that your interpretation of events as well?
I think there's two possibilities and that's one of them. One is that he got played the same way that the public got played for many years. The alternative theory, and I have no idea which one of these is true, is that he or some of the lawyers at OpenAI, who I think are very competent and very knowledgeable, knew this, but thought that they could play the same game that the NSA played for a few decades in that as long as they say these things and then they say the words, but they don't reveal the actual interpretations that they could get away with it, too. So Sam comes out with the statement that makes it look like, you know, we had the exact same red lines as Anthropic did and the government was great with that. In fact, I think Sam put it that they had a third red line that Anthropic had two red lines and OpenAI had three and the government was perfectly fine with it. And that left a lot of people sort of scratching their heads. But I think it has to be either that Sam and whoever was surrounding him didn't understand how these work in practice or they did and they just assumed that the public wouldn't know and therefore they could get away with it.
The other thing that comes to mind, again AI is new and it's so tempting to come at new technologies, is that these are problems of first impression.
Yeah. No one's ever had to think about this before, but the reality is everyone's been thinking about this stuff for a long time. Maybe the thing that's new here is not AI, but that the second Trump administration, instead of doing a bunch of lawyering that maybe no one will ever read to justify their actions to a secret court that no one's paying attention to, they're just not that subtle. They're not that sophisticated. And they're just saying they're going to spy on everybody all the time.
Yeah. They just announce their intentions in a way that maybe all administrations should just announce their intentions and see where the chips fall. But I'm looking at, okay, there was Ed Snowden here in New York City. There's AT&T runs a building that everyone knows is an NSA building. Like it's just a giant building and we're supposed to pretend it's not an NSA surveillance center, but like it's right there. It's huge. None of that seems to have come to anything, right? Like all of these revelations, these leaks, we haven't backed it off. In fact, it's only increased as so much of our lives has gotten more and more digital and maybe the Trump administration being such a blunt instrument at all times. That might actually be the thing that causes the reckoning. Do you see that playing out anyway?
Yeah, I mean, I think there's a few different things there and it's not entirely true that we haven't backed off this stuff at all. I mean the revelations did lead to some changes within how these things happen and there are now, I forget what they're called, but they're like these civil amici, people within the FISA court that will act as presenting the other side on certain issues. We've seen some of the authorities limited in certain ways and they come up for reauthorization every so often and people, activists have been very aggressive and pushing back and trying to put some more guardrails on. But to the larger question, I think there's two different things. I think you're half right in that this administration is not subtle and just says out loud the things it shouldn't and that...
We're at war with Iran. They're just like, we're doing it. It's happening. You know, it's like...
We're not even going to try the dance.
Yeah. In ways that all previous administrations wouldn't do. But they haven't really said that directly about surveillance, especially surveillance of Americans. You know, there's been hints of it, but they haven't come out as strongly on that. So, I'm not entirely sure that it's that. The other half of it is, I think maybe has to do more with Anthropic's positioning and the general view of AI as this possibly existential technology where Anthropic has always presented itself as we're the sort of thoughtful good guys. And whether or not you believe that is kind of besides the point, but they have this reputation out there of we're trying to do this in a way that is safe, that respects humanity and is paying attention to all of these things. And so when you have that clash, I think that's where the struggle comes in. You have a Trump administration that just wants to be able to do whatever it wants to be able to do and they're not subtle about that. And you have an Anthropic that its self-description and its public persona is always like we're thoughtful and we respect humanity and rights and all of these kinds of things. I think that's probably where the clash came in because Anthropic, you know, as has been made clear, has worked with the Defense Department for a while and has many other contracts with the government that it has used. It hasn't been a problem. It was only in these specific areas where, you know, as the government was seeking to expand the contract that it had that, you know, the senior leadership of Anthropic began to say, well, wait, we have to make sure that we're not crossing these red lines that would potentially harm our reputation as the sort of thoughtful safe AI provider.
I want to briefly ask you about surveillance in general and in particular Anthropic's Fourth Amendment concern. Right, the Fourth Amendment says the government can't unreasonably search you. The best way to understand the Fourth Amendment is by listening to 99 Problems by Jay-Z. So if you need to take a break and go listen to 99 Problems, that's great. It's all in there. I listened to it when I was in law school and made perfect sense. But the government generally needs a warrant to like search you. And as more and more of your life goes online, there's lots and lots of exceptions to this. But the idea is they should still need a warrant online. Anthropic's argument is well the AI will never get tired. It can search everything all the time. That means we're just going to do mass surveillance. But even before AI showed up, right, the idea that the government could search everything that belonged to you was out there. The idea that the government didn't need a warrant to search all of your stuff was out there. The idea that if any of your data ever went outside the country for a brief second, the government intercepted there was out there. When I was in college around the time of the Patriot Act, the debate was they're not going to search your actual data, but they can get the metadata. And the metadata alone, the data about your data will be enough to precisely locate you at all times. And that even that is too far. And we've been doing this dance of what can the government collect, what is permissible, what do they need to keep us all safe, and what's too far. Those lines have moved. So just briefly describe the sort of generalized concern about surveillance at this scale and where we are now. Yeah. Before the AI situation sort of exponentially made everything more complicated.
