Anthropic doesn't trust the Pentagon, and neither should you

12 Mar 2026 · 49 min · 11 chapters

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In short

Decoder discusses Anthropic’s legal fight with the Pentagon over being labeled a “supply chain risk,” focusing on mass surveillance, how US surveillance authorities expand beyond plain-language limits, and why Anthropic distrusts government claims it will follow the law.

Guests

Mike Masnick, founder/CEO of Techdirt, a long-running tech policy site focused on privacy and government overreach.

Key claims

US surveillance grew via incremental reinterpretations of laws (Patriot Act, FISA court, Executive Order 12333). Terms like “target” are argued to be redefined so communications involving non-US persons can include US persons’ data, enabling “backdoor searches.” The “third-party doctrine” lets the government obtain data held by companies (cloud, brokers) with lower protections than the Fourth Amendment would suggest. Anthropic’s red line is refusing to let Claude be used on certain third-party commercial data that would enable 24/7 mass surveillance. The episode argues the Pentagon’s approach escalates beyond normal contract disputes by threatening to destroy Anthropic’s business. FIRE’s “code is speech” argument is presented: forcing unwanted code changes could be compelled speech.

Notable examples

James Clapper’s 2012 denial about collecting mass data; Ron Wyden’s questions; Snowden revelations; iPhone backdoor litigation; FISA court “rubber stamp” history; NSA tapping communications that leave the US.

Written by AI. May contain mistakes. Listen to the episode to check what was said.

Chapters

Tap a time to open that second in VO

Understanding Anthropic and AI Surveillance

2:12 to 4:21

A deep dive into the legal battle between Anthropic and the Pentagon.

“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.”

The Red Lines of Anthropic

4:21 to 6:43

Discussion on mass surveillance and its implications for AI development.

“Mike Mazdik, you are the founder and CEO of TechDirt.”

Historical Context of Surveillance Laws

6:43 to 14:01

Examination of the evolution of U.S. surveillance laws over decades.

“And yeah, it sort of depends on how deep you want to go.”

Legal Interpretations and Surveillance

14:01 to 14:22

Explore how legal interpretations are manipulated to justify surveillance actions.

“the assumption was always like, well, we can sort of bend the law or bend our interpretation of the law.”

The Tension Between AI and Surveillance

17:34 to 28:00

Discuss the implications of AI technology in the context of government surveillance practices.

“Exclusion supplies to homedepot.com slash price match for details.”

Anthropic's Ethical Dilemma with Government Contracts

28:00 to 28:55

Explore how Anthropic navigates its relationship with the government and its ethical considerations.

“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.”

Surveillance and Data Privacy Concerns

29:38 to 36:44

Delve into the implications of surveillance and data privacy in the cloud era.

“In a classroom of sodas, most stay quiet.”

Compelled Speech and AI Ethics

36:44 to 42:08

Discuss the argument that forcing companies to build certain tools may violate free speech.

“And Amazon has to stand in the middle of that process and say, we've invented another process to somewhat protect the people.”

The Compelled Speech Argument

42:08 to 43:53

Discussing the implications of compelled speech in tech and legal contexts.

“There's one piece of this that I want to end on, and it's kind of the galaxy brain version of all this.”

Introducing Helen Havlick

43:53 to 44:31

Transitioning the conversation to AI coverage and introducing a special guest.

“It's just the nature of the second Trump administration is that it's such a blunt instrument.”
Show all 11 chapters

Growing AI Coverage at The Verge

44:31 to 45:54

Exploring how The Verge is expanding its coverage of AI and related stories.

“Before we wrap up, really quickly, I want to bring on a very special guest.”
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Transcript

Automatic transcript. May contain errors.

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1:33Nilay Patel:I'm Neil I. 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.

2:04Nilay Patel: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.

2:36Nilay Patel:My guest today is Mike Masnick, the founder and CEO of Techter, 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 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.

3:09Nilay Patel:You'll hear Mike explain in great detail in this episode that we cannot and should not take the United States government at its word when it comes to surveillance. There's just too much history of government lawyers twisting the interpretations of simple words like target to expand surveillance in complicated ways. Ways that usually only cause concern in legal circles, and only bubble up to the mainstream when there are huge controversies like the Snowden revelations. But there's nothing subtle or sophisticated about policymaking in the Trump era. And so with Anthropic, we are now having a very loud, very public debate about technology and surveillance in real time, on the internet, and blog posts and posts on X and press conference soundbites.

3:49Nilay Patel:There are positives and negatives to that, 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. Before we start, a quick reminder that you can listen to this episode, or any episode of Decoder, completely ad-free by subscribing to The Verge. Just go to theverge.com slash subscribe. Okay, TechDirt founder and CEO Mike Mazdik on Anthropic, the Pentagon, and AI surveillance.

4:21Nilay Patel:Here we go.

4:34Nilay Patel:Mike Mazdik, 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 the 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.

5:00Mike Masnick:It is a complicated mess of a topic, but I'm excited to be digging in on it.

5:07Nilay Patel: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 nascent, whether or not the weapons even exist or have already been deployed by Russia in the Ukraine war.

5:38Nilay Patel: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.

6:12Nilay Patel:We don't have to do anything. We don't have – 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 like 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.

6:42Mike Masnick:Yeah. And yeah, it sort of depends on how deep you want to go. But the sort of short version is obviously in the post 9-11 world. The U.S. 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.

7:29Mike Masnick: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. Triple Three, which is supposedly about setting out the rules of the road for intelligence collection. And so you have these three sets of laws, well, you know, 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.

8:19Mike Masnick:In fact, to the point that they're supposed to, if they realize that they are surveilling a U.S. 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.

9:10And I believe it was one hearing in like 2012 with James Clapper,

9:16Mike Masnick: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 data, the reports that he leaked to Glenn Greenwald and Bart Gelman 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.

10:01Mike Masnick:But so, you know, a sort of broad understanding of what this is, in theory, they're only supposed to target people who are not U.S. 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 U.S. 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 on route somewhere.

11:06Mike Masnick:So if I'm texting you and a message went from me in California through a fiber optic cable that happened to leave the U.S., the NSA could put a tap in the part once it's outside the U.S., collect that information, even if it was just going to you within the U.S. And then what they could do is keep that information, even if it was on U.S. 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.

11:44Mike Masnick: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 U.S. And even if it is entirely between two U.S. persons, if they mention or even hint at someone who is not a U.S. 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 U.S. persons by an NSA that claims and publicly states that they do not spy on U.S.

12:23Mike Masnick:persons. How did we get to this point?

12:25Nilay Patel: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?

12:54Mike Masnick: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 would be really helpful in preventing a terrorist attack.

13:27Mike Masnick: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 administration after administration, again, Republican and Democrat, had lawyers who were very clever and who would look through, well, 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.

14:11Mike Masnick: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.

14:22Nilay Patel:We need to take a quick break. We'll be right back.

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16:51Nilay Patel:It is an honor to share.

16:52Mike Masnick:No, it's our honor.

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Read the full transcript

17:34Nilay Patel:Exclusion supplies to homedepot.com slash price match for details.

17:41Nilay Patel:We're back with Tech Dirt founder Mike Masnick. talking about mass surveillance in the history of the United States government, manipulating language to get around our constitutional rights. There's two things that really jump out at me. One, 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?

18:19Nilay Patel:Like left or right, they both say it. They 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 – the justices of both parties both agree is at least the first step.

18:49Mike Masnick:I wish I knew the exact answer. But 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.

19:31Mike Masnick: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 it's easy to just say, well, if 99%, that's obviously too much. Obviously, those bringing claims to the court, they're picking and choosing. They're not, for the most part, bringing totally crazy claims.

20:15Mike Masnick: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, you know, and that's where you end up over time.

20:33Nilay Patel: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?

20:42Mike Masnick:I mean, obviously you had like Ed Snowden who leaked a bunch of documents. You had John Napier-Tai 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.

21:24Mike Masnick:And the best way to do that is to have as much information as possible. And 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, 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, 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.

22:03Mike Masnick:And as a country that believes in the rule of law, we should be able to live up to that. And when all this stuff happens in darkness, you will tend to lose sight of that. I think this brings me to Anthropic.

22:17Nilay Patel:Anthropic is primarily an enterprise company. They're good at the government. 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 Amode is out there saying, we can do too much.

22:50Nilay Patel: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 swoops in to say we'll do all lawful uses and then posts 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 been since walking it back.

23:25Nilay Patel: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?

23:42Mike Masnick: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. And 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 a 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.

24:26Mike Masnick: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, like, 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.

24:53Nilay Patel: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.

25:29Mike Masnick:Yeah.

25:29Nilay Patel:They just announced 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, OK, 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.

26:01Nilay Patel: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 in any way?

26:11Mike Masnick: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 amicus 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 activists have been very aggressive in pushing back and trying to put some more guardrails on.

26:52But to the larger question, I think there's two different things.

26:56Mike Masnick:I think you're half right in that this administration is not subtle and just says out loud the things it shouldn't. We're at war with Iran. They're just like, we're doing it. It's happening.

27:10Nilay Patel:It's like we're not even going to try the dance.

27:13Mike Masnick: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 anthropics positioning. And the general view of AI is 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.

27:58Mike Masnick: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, you know, 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.

28:30Mike Masnick: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, 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.

28:55Nilay Patel:We have to take another quick break. We'll be back in just a minute.

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29:38Mike Masnick:In a classroom of sodas, most stay quiet. Then there's Mr. Pibb. Sweet cherry, bold outbursts, the kind of flavor that gets attention. Bold kick of cherry.

29:49Nilay Patel:And you're Mr. Pibb.

29:50Mike Masnick:You tell yourself no one wants your college-era band tees, But on Depop, people are searching for exactly what you've got. You once paid a small fortune for them at merch stands. Now, a teenager who calls them vintage will offer that same small fortune back. Sell them easily on Depop. Just snap a few photos and we'll take care of the rest. Who knew your questionable music taste would be a money-making machine? Your style can make you cash. Start selling on Depop, where taste recognizes taste.

30:21Nilay Patel:Chronic migraine. 15 or more headache days a month. each lasting four hours or more, can make me feel like a spectator in my own life.

30:28Mike Masnick:Botox, onabotulinum toxin A, prevents headaches in adults with chronic migraine. It's not for those with 14 or fewer headache days a month. It's the number one prescribed branded chronic migraine preventive treatment. Prescription Botox is injected by your doctor. Effects of Botox may spread hours to weeks after injection causing serious symptoms.

30:45Nilay Patel:Alert your doctor right away as difficulty swallowing, speaking, breathing, eye problems, or muscle weakness can be signs of a life-threatening condition. Patients with these conditions before injection are at highest risk. Side effects may include allergic reactions, neck and injection site pain, fatigue, and headache. Allergic reactions can include rash, welts, asthma symptoms, and dizziness. Don't receive Botox if there's a skin infection. Tell your doctor your medical history, muscle or nerve conditions, including ALS Lou Gehrig's disease, myasthenia gravis or Lambert-Eaton syndrome, and medications, including botulinum toxins, as these may increase the risk of serious side effects.

31:15Mike Masnick:Why wait? Ask your doctor, visit BotoxChronicMigraine.com, or call 1-800-44-BOTOX to learn more.

31:25Nilay Patel:We're back with TechDirt's Mike Mastic. Before the break, Mike was explaining how Anthropics' reputation as the safe, conscious AI company is being put at risk by the Trump administration's blunt demand that the tech industry essentially shut up and stopped asking questions about how its technology will be used and to what end. Now I want to get into an important detail of the story, which relates to where our data comes from and where it lives. Because the Fourth Amendment prohibits unlawful search and seizure when it comes to data that we own and control. But in the era of cloud computing and cloud services, the vast majority of our data isn't kept on our devices or in our homes, but instead on corporate servers run by huge companies.

32:01Nilay Patel:And the government can, in a lot of cases, go and obtain it without a warrant. I want to briefly ask you about surveillance in general, and in particular, Anthropik'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 it made perfect sense. But the government generally needs a warrant to search you. And as more and more of your life goes online, there's lots and lots of exceptions to this.

32:31Nilay Patel:But the idea is they should still need a warrant online. Anthropics 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, 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 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.

33:04Nilay Patel:And the metadata alone, the data about your data will be enough to precisely locate you at all times. And 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 before the AI situation sort of exponentially made everything more complicated.

33:35Mike Masnick:Yeah, and here I have to introduce another concept that I probably should have mentioned earlier, but it is important, which is called the third party doctrine. And so the idea with the Fourth Amendment is that the government can't search you or your things without a warrant, and it can't get a warrant without probable cause that you've committed some sort of crime. But there's this concept which came about decades ago called the third party doctrine, which says that doesn't necessarily apply or doesn't apply at all to things that aren't yours, even if it is your data. And so the earliest and most obvious version of this was phone records that the phone company had of who you called.

34:15Mike Masnick:The phone companies weren't recording your calls, but they were recording, you know, if I called you, there would be a record at the phone company that says Mike calls Neelay. What had been determined by multiple courts was that the government can go and request and they don't need a warrant for that because it's not a search of your data. It's this third party and they can agree as a third party to just hand over that data. But that was like, you know, cases from the 60s and 70s where that was determined that the government can get access to that without a warrant. When there wasn't that much third-party data out there, the rise of computers and the internet changed that.

34:55Mike Masnick:Now, everything is third-party data. Everything that we do is collected by some company somewhere and has a record of it. And so basically every bit of data about you, where you are, who you speak to, who you interact with, what you say, what you're doing, all of that is pretty much held by third parties these days. And so the third party doctrine has sort of swallowed the entire Fourth Amendment to some extent, where anything that is about you that somebody else has, there's a much lower standard for what the government can do to request it. Now, companies can't.

35:30Nilay Patel:And just to be specific, this means when my data is in iCloud, the government can go to Apple and get my data out of iCloud without ever telling me.

35:38Mike Masnick:Well, they can request it. So they can easily request it without a warrant. Then the company has its own rights and can determine what they want to do with that request. They can just give it up. They can, as most of them will do, if it's a serious request. They can reject requests out of hand, or they can alert you, and they can say, and this is what most of them will do, they'll alert you and say, you know, the government is requesting some of your data. You know, you can go to court and try and block them. If not, we will hand over your data in seven days or whatever it might be. Again, it depends.

36:12Mike Masnick:If it's a criminal investigation, then there may be some sort of gag order where the company is not allowed to tell you. There's all sorts of situations, but most of them involve less than the level of protection that the Fourth Amendment would require if it was data or any information or anything in your own home.

36:30Nilay Patel:I'm asking this because it's obvious to everybody listening to this. The amount of data you have on someone else's cloud server is massive. Every single thing that you do generally on the internet now is backed up in some way or recorded in some way on someone else's servers. And the government has found this way to get around the Fourth Amendment and say, well, that's not actually yours. It belongs to Amazon or whatever. We can go talk to Amazon. And Amazon has to stand in the middle of that process and say, we've invented another process to somewhat protect the people. And I look at that and, you know, when I was covering the first third-party doctrine cases that covered the cloud services and the government kept winning, that's basically when I turned into the Joker.

37:11Nilay Patel:And I was like, all of this stuff that we're pretending about textualism and the plain – like none of this means anything. Yeah. Because we just – it horsepowered a backdoor using this ancient law into everyone's data. And then I look at this and I look at Anthropic and I say, well, this is the same pattern, right? This is a private company saying, okay, we understand your position. We understand that you've reinterpreted the law to mean this thing. And we're going to put some process in between you, our tool, and the data of Americans flowing through our service. And I'm just wondering if you see that parallel there between Anthropic and Amazon and Azure and whatever other cloud services that exist that hold so much of our data.

37:52Mike Masnick:Yeah, though I think there are a few clarifications that are important here that make this a little bit different. And in fact, it was reported, I think the New York Times had this reporting first, that the main clause that was most important to Anthropic was specifically about data collected from commercial services and not being able to use Claude on that data, which is exactly this issue in terms of third-party data. But I do want to clarify the main difference where what we were just talking about before this with Amazon or other third parties hosting your data, that was cases where they were, because of where they sit in the ecosystem, they were hosting your data directly.

38:35Mike Masnick:With Claude, it's not that anyone is worried about the NSA looking through your Claude usage. It's about them going out and getting third-party data from an Amazon or, more likely, the sort of sneaky, hidden data brokers that serve ads on your phones and know all your location and your interests and things like that. And then feeding that into a system that Claude would then work on. That's what Anthropic really didn't want to be a part of. So wherever or however the government would collect that data from a third party, Claude said, we don't want our tool to be used on that data.

39:13Nilay Patel:There's a piece of that that just feels like Apple famously stands up to the FBI, put a backdoor in the iPhone, and Apple says no, and they stand up to Trump. And there's just a part of however our system works in which big private companies get to say no to the government on behalf of their customers. and this felt the same. In the same way that, you know, Apple again won't put it back to on the iPhone or the big cloud providers say there's a little bit of a process you have to jump through before you get the individual data. Here it seems like Anthropic is saying we're not just going to do bulk analysis of data that you have acquired from other parties because that leads to 24-7 mass surveillance of Americans and we don't want to do that.

39:53Nilay Patel:And that seems like a bridge too far for this administration. Is there any coming back from that?

40:00Mike Masnick:I mean, we'll see. In the past when that's happened, and it's happened plenty of times with most of the large tech companies, at some point they've said something is a bridge too far. And where that normally goes is to court. And that, you know, the companies will go to court or the administration will go to court and there'll be some sort of court battle. I mean, you know, backdooring the iPhone is a perfect example of that. sort of went to court and they sort of fought it out, though they never quite got to a conclusion because the FBI eventually did just manually break into the iPhone and then didn't want the court ruling to ruin the future.

40:37Mike Masnick:But in this case, where the escalation is and where this is different than those past situations is that rather than just going to court, they did this supply chain risk designation, which is just insane, you know, this idea that this tool, which was designed to stop, you know, potential foreign malicious actors from supplying technology that could then, you know, put in hidden surveillance tools into the larger technology stack, that those could be banned. To apply that to a U.S.-based company, basically for having an ethics policy feels like a real misuse of that tool. And even that tool, I think, was questionable in some ways.

41:25Mike Masnick:But you could understand the impetus behind it for when you're talking about a Chinese networking firm or something along those lines. Here, it makes no sense. And so the reaction to this goes so far beyond what would normally be seen in this case. You could see, traditionally, there would be some sort of court case, and either side could start it. And it would just be a battle about how the contract could be applied. But that's not what is happening here. 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.

42:07Mike Masnick:And that is an escalation.

42:09Nilay Patel:There's one piece of this that I want to end on, and it's kind of the galaxy brain version of all this. FIRE, which is a free speech advocacy group, they put out a blog post just before I started recording, making the argument that forcing Anthropic to build tools it doesn't want to build is a free speech violation, that it's something called compelled speech. There's a lot of history here. This is some deep verge in tech dirt, like in the weeds existential crisis history here. But it basically comes down to the idea that code is speech. Writing code for a computer is a form of speech, and the government can't force you to do it.

42:46Nilay Patel:And a whole bunch of stuff flows from that. Do you buy this argument that forcing Anthropic to build tools, it doesn't want to build, is compelled speech?

42:53Mike Masnick:Yeah, I actually think it is fairly compelling. Compelling, compelled speech. But no, I do think it is an interesting argument. It's one that had been a little bit further down the list of the issues that I was thinking about. I was obviously mostly more focused on the Fourth Amendment issues and that. But this, I think the FIRE argument is not wrong. And we have seen this in other contexts in terms of, you know, it did come up in the backdoor issue as well in terms of trying to build backdoors into encrypted systems. Companies definitely raised First Amendment claims and saying you can't, that is compelled speech to force us to write that kind of code.

43:35Mike Masnick:And so I think it is a valid argument. It might be, again, one that courts are probably less willing to tackle initially if they can deal with these issues some other way. But I'm glad that FIRE made that post, and I think it is an interesting and compelling argument.

43:53Nilay Patel:It's just the nature of the second Trump administration is that it's such a blunt instrument. It is almost certain we will attack all of the issues all of us. Yes.

44:03Mike Masnick:Yeah, yeah. And yeah, I mean every Bill of Rights amendment has to be challenged in some form or another with every possible issue. I'm sure we can fit a Third Amendment violation somewhere in here as well. Oh, sure.

44:20Nilay Patel:Yeah, Claude has to live in your house now. It's going to be great. We're doing one, three, four, and seven. Let's rack them up. Mike, this has been great. I cannot believe you haven't been on the show before. This has been great. You got to come back soon. Absolutely. Whenever you want me. Before we wrap up, really quickly, I want to bring on a very special guest. It's Helen Havlick, our publisher here at The Verge. Hey, Helen.

44:39Mike Masnick:Thanks for having me on.

44:40Nilay Patel:Helen, I wanted to ask, because you run our business, there's a lot of talk about AI. We just did a whole episode about it. How are we investing in that coverage? How are we growing that coverage here at The Verge?

44:49Mike Masnick:You and I obviously spend a lot of time talking about The Verge's AI coverage, how The Verge needs to cover this story. It's both the biggest story as a standalone beat for The Verge. We've hired some amazing people like Hayden Field who are covering it as a standalone beat, but it's also the biggest story in kind of every desk of The Verge, right? Our policy desk is pointed dead ahead at the story, and we have a lot of fantastic people there. And Tina Nguyen, who we've hired, and Sarah Jong, who's doing amazing reporting. And then lastly, in our product coverage, you know, I think as you and I talk to each other and then as I go into market to talk to partners and advertisers about The Verge, I think what makes our coverage really unique is that it's rooted in the product coverage.

45:27Mike Masnick:So what our senior reviewers have to say about the actual products these companies make, how they are to use, what the experience of using product is as a consumer, because I don't think you can tell the business story of AI and the policy story of AI without being deep in the product story of AI. And I think that is what makes it a perfect Verge story for this moment and what I think also makes the Verge the uniquely best place to cover this story in this moment.

45:54Nilay Patel:It is true that not enough AI coverage features the question, does this work? And the Verge relentlessly asks that question.

46:00Mike Masnick:Does this work and will people pay for it?

46:02Nilay Patel:We often describe Helen as our firewall here at the Verge. She runs the commercial side of our business. I run the newsroom. Helen runs the advertising business or subscriptions business. And there's a wall between that. Our business doesn't affect what we make here in the newsroom. And it's Helen and I that protect that dynamic. Helen is the firewall. Helen, help people understand that separation and what individual listeners and readers of The Verge can do to support us.

46:25Mike Masnick:One of the things that makes The Verge, I think, really unique and respected is how strong our ethics policy is, where our coverage is definitely not for sale. But we do still have a huge advertising business. That's a big part of what supports The Verge. And so a big part of my job is to work with our partners, our advertisers, our sales team to help them understand the verge, why they should advertise with us, what opportunities we can develop. You know, we've made new ad products like Quick Post ads. They're clearly disclosed. We want to make good advertising that people like because that also makes ads perform better.

47:00Mike Masnick:And so in running that business, I'm kind of on that side of the house. We also, for the last year, I think as many people here know, have a really big subscriptions business. And that's the single most important thing any individual person can do to support our coverage in this moment is subscribe to The Verge. Benefits you get with a Verge subscription, you obviously get unlimited access to read The Verge. We now have an ad-free version of this podcast feed, Decoder, where you can subscribe and get the feed for free. And then if you are interested in the story of AI and policy and some of the themes of this episode, your subscription also gets you a bunch of newsletters you should really enjoy.

47:38Mike Masnick:Tina Nguyen has a fantastic newsletter about MAGA tech policy and how all of this is unfolding called Regulator. If you're interested in the product side of it, I'd really recommend Victoria Song's newsletter, Optimizer, about the crazy AI intersection with wellness and how we all live. David Pierce's Weekend Read Installer is always one of my favorite. What little things should I play with that are new and interesting? And there's a lot of product playing out there. Right now, a Verge subscription annually. And because I'm the publisher in Firewall, I will shill shamelessly. A Verge subscription right now starts at$40 for the first year.

48:15Mike Masnick:It is incredibly good value, and it also supports all of this work we need to do and helps us invest in hiring more reporters to cover this story.

48:23Nilay Patel:I will tell you, I found out this week some of the biggest executives at some of the biggest companies in the world read Installer the same way you do every single weekend. It's pretty good stuff. One thing you and I have been talking about is the shift in the advertising market. Decoder listeners know this well. Influencer marketing is real. The idea that the ad should be integrated with the content is everywhere. where you've got some ideas for how we can do that and preserve our ethics policy and keep that separation alive. We're going to hear some of those ideas from you on the show in a couple of weeks.

48:53Nilay Patel:Give the listeners a preview.

48:54Mike Masnick:Yes, I'm super excited to be piloting a new ad product for this podcast specifically. It's called Decoder Sessions. A joke we have that is also deeply true is that Disclosure is our brand. And so I think the way The Verge handles this is to make really good products that do a good job for our advertising partners, but that also ideally make a much better product for you, our listeners and viewers, while also disclosing it and separating it to the standards of our ethics policy. So one thing we are going to try on this show, where the thing you cannot do is pay us to have your executive talk to Neelai.

49:30Mike Masnick:But this is a show of interviews. This is a show of interesting conversations about business and organizational structure and technology. So we are going to take that format, which is to interview interesting people from companies about their businesses and their organization. And we are going to make a new kind of ad break for you that hopefully you really enjoy and that is better than kind of a standard podcast ad that's more fun, more engaging, more native. I will host it. So I'm going to be talking to different executives from some of our partners. It will be separate from what Neelai is doing.

50:02Mike Masnick:Neelai will not get a heads up on any of it. But I'm really excited about it. what we want to make is a better product for you and a better product for our partners that still kind of holds the high standards of The Verge. So we have our first one coming up in a few weeks. I think it should be really fun. I'm talking to an executive from L 'Oreal Group. It is going to be a really fun time.

50:20Nilay Patel:I'm excited for this product because I want to go compete for where I think the advertiser dollars are going, which again, every decoder listener knows, I think is headed towards the creator economy in ways that collide with journalism. So this is our approach to solving it. That one's going to come out. You're going to hear Helen do that interview. We're very interested in your feedback and how we can make that stuff better. I think the ads should be good. I think they should be fun to listen to, just like the show is. I just think someone else should make them. So Helen, I'm excited for your first Decoder session.

50:49Nilay Patel:Thank you so much for joining me quickly at the end here.

50:51Mike Masnick:Thank you, D-Life.

50:53Nilay Patel:I'd like to thank Mike Mazik for taking time to join Decoder, and thank you for listening. I hope you enjoyed it. If you'd like to let us know what you thought about this episode or really anything else at all, drop us a line. You can email us at decoderattheverge.com. We really do read all the emails. You can also hit me up directly on Threads or Blue Sky, and we're on YouTube. You can watch full episodes at DecoderPod. We also have a TikTok and an Instagram. They're at DecoderPod as well. They're a lot of fun. If you like Decoder, please share it with your friends and subscribe wherever you get your podcasts.

51:16Nilay Patel:Decoder is a production of The Verge and part of the Vox Media Podcast Network. The show is produced by Kate Cox and Nick Statt. It's edited by Ursa Wright. Our editorial director is Kevin McShane. The Decoder music is by Breakmaster Cylinder. We'll see you next time.

51:26Mike Masnick:Thank you. Sign up for your$1 per month trial at shopify.com slash special offer.

From the publisher

My guest today is Mike Masnick, the founder and CEO of Techdirt, the excellent and long-running tech policy blog. 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 in interconnected ways over the past two decades.

I wanted to have Mike on the show to discuss the messy, fast-moving situation at Anthropic, the maker of Claude that now finds itself in a very ugly legal battle with the Pentagon. Instead of covering the daily drama, I wanted to dig in specifically on Anthropic's surveillance red line, and the important history and context around digital privacy in the U.S. that shapes how we should think about this going forward. 

Links:

AI bros wanted Trump — now they learn what happens when you tell him no | Techdirt

OpenAI’s ‘red lines’ are written in the NSA’s dictionary | Techdirt

Anthropic is suing the Department of Defense | The Verge

Anthropic launches new think tank amid Pentagon fight | The Verge

How OpenAI caved to the Pentagon on AI surveillance | The Verge

Inside the backlash to the AI war machine | Platformer

The Pentagon is violating Anthropic's First Amendment rights | FIRE

Why the Pentagon wants to destroy Anthropic | Ezra Klein / NYT

Subscribe to The Verge to access the ad-free version of Decoder!

Credits:

Decoder is a production of The Verge and part of the Vox Media Podcast Network.

Decoder is produced by Kate Cox and Nick Statt and edited by Ursa Wright. Our editorial director is Kevin McShane. 

The Decoder music is by Breakmaster Cylinder.
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