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

Today we’re talking 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.

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

Techdirt’s Mike Masnick on the history of the NSA and mass surveillance in America, and why Anthropic’s fight with the Pentagon should worry us.

The back-and-forth is complicated, but as of a few days ago, the Pentagon had deemed Anthropic a supply chain risk, and Anthropic has filed a lawsuit challenging that designation, saying the government has violated its First and Fifth Amendment rights by “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 on The Verge and here on Decoder in the months to come.

But today I wanted to take a moment and really dig in here on one very important element of this situation that’s not gotten enough attention as this has spiraled out of control: how the United States government does surveillance, the legal authority that allows that surveillance to occur, and why Anthropic was 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. 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 surveiling us, and then what the government 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.

You’ll hear Mike explain in great detail here in this episode that we cannot — and should not — take the US 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 when there are huge controversies like whistleblower Ed Snowden’s major NSA revelations more than a decade ago.

But there’s nothing subtle or sophisticated about policymaking in the Trump era — and so with Anthropic, we’re having a very loud, very public debate about technology and surveillance in real time, on the internet, in blog posts and X rants, and over press conference sound-bites. There’s 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 episode — whatever your views on AI and government, this episode will make it clear that both parties have let the surveillance state get bigger and bigger over time. Now, 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.

*This interview has been lightly edited for length and clarity. *

Mike Masnick, you’re the founder and CEO of Techdirt. Welcome to Decoder.

I’m glad to be here.

I’m excited to have you on. I was just saying I am 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 TheVerge 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.

**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, which is its own level of complication. 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. **

There are a lot of ideas here that 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. 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.

**It all comes down to—I think you are the one who posted this—the National Security Agency (NSA), which is part of the Department of Defense, which we have to call the Department of War now for some reason. **

[Laughs] We don’t have to do anything.

[Laughs] We don’t. That’s true here in America. We don’t have to do anything. But the NSA has basically redefined what a lot of words mean out of colloquial English to mean, “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.

It 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. 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 traditionally been a one-sided court. Only one side gets to plead their case to that court and it’s all done in secret.

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.

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. 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’re supposed to immediately stop and cry foul and erase the data and all of this other stuff.

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, “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?”

Those officials would either deflect or in some cases outright lie. I believe it was one hearing in 2012 with James Clapper, who was the Director of National Intelligence at the time, where he was asked directly on this point. And he basically said, “No, we don’t collect data on Americans.” That was a big part of what inspi