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

Summary

Decoder with Nilay Patel – Episode Summary

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

Date: March 12, 2026
Host: Nilay Patel (Editor-in-Chief, The Verge)
Guest: Mike Masnick (Founder & CEO, TechDirt)

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Episode Overview

This episode dives into the rapidly escalating legal and ethical standoff between artificial intelligence company Anthropic and the U.S. Department of Defense, focusing especially on questions of AI-enabled government surveillance. Nilay Patel and Mike Masnick use Anthropic’s legal challenge as an entry point to unpack the historical, legal, and cultural roots of mass surveillance in America—exploring why neither Anthropic nor the average citizen should easily trust government interpretations of surveillance law, especially as AI technologies raise the stakes and the scale.

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Key Discussion Points & Insights

1. Setting the Stage: Anthropic vs. the Pentagon

• Background: Anthropic, best known for its Claude AI, is suing the Pentagon after being labeled a "supply chain risk," claiming violations of its First and Fifth Amendment rights ([01:28–04:33]).
• Two Red Lines:
  • Autonomous weapons: Set aside for this episode.
  • Mass surveillance: The primary focus, highlighting the potential of AI tools to enable unprecedented government spying ([05:03–05:43]).

2. How U.S. Surveillance Laws Grew and Shifted

• Post-9/11 Landscape:
  • Patriot Act expanded surveillance powers, later interpreted more broadly.
  • FISA courts are secretive and one-sided: "Only one side gets to plead their case… It’s all done in secret." (Masnick, [06:38]).
  • Executive Order 12333 (Reagan era) set rules for intelligence collection but was later re-interpreted ([06:38–12:18]).
• Key Insight:
  • The NSA invents new meanings for ordinary words (like "target") to justify broad surveillance: "…the NSA has its own dictionary that is somewhat different than the dictionary you and I use…" (Masnick, [09:44]).
  • Even U.S. citizens’ data may be swept in through foreign contact, secret FISA proceedings, or by data traversing international cables.

3. Partisan Continuity in Expanding the Surveillance State

• Both Republican and Democratic administrations incrementally broadened surveillance powers for fear of terrorist attacks and political blowback.
  • "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." (Masnick, [12:50]).
• Clever government lawyers systematically "bend" the law or reinterpret statutes to keep surveillance efforts out of public view ([12:50–14:18]).

4. Legal Games: Deference and Lack of Adversarial Process

• Nilay highlights American legal tradition's focus on textualism, asking why government interpretations in this realm stray so far: "…how do lawyers of both administrations get this far away from the dominant mode of legal decision making…?" ([19:26]).
• Mike: It’s "motivated reasoning," and without adversarial input—i.e., no one pushing back in FISA court—government definitions go unchallenged ([19:45–21:29]).
• FISA court historically acts as a "rubber stamp," approving nearly all government surveillance requests ([20:37]).

5. Anthropic’s Position vs. OpenAI: Understanding “Lawful Uses”

• Anthropic refused to enable mass surveillance, arguing the government’s interpretation of "lawful uses" is untrustworthy ([23:11–24:38]).
• OpenAI (Sam Altman) initially agreed to all “lawful uses," perhaps without appreciating the government’s expanded interpretations ([24:38]).
• Two possible explanations:
  • Either Altman was unaware of these legal games; or
  • OpenAI’s lawyers intended to exploit the ambiguity, just as the NSA did ([25:24]).

6. The Role of Public Exposure & the “Blunt Instrument” Administration

• In past decades, public scandals (e.g., Snowden, massive data leaks, known NSA buildings in NYC) have not meaningfully curtailed government surveillance ([25:58–28:09]).
• The current Trump administration is described as unusually unsubtle and direct, potentially forcing a more open societal reckoning over surveillance and tech company resistance: "They just announce their intentions… maybe all administrations should just announce their intentions and see where the chips fall." (Patel, [25:58–27:06]).

7. The Third-Party Doctrine and Cloud Age Vulnerability

• The Fourth Amendment (against unreasonable search/seizure) is undermined because so much user data is held by third parties (cloud providers, ISPs, etc.):
  • "…the third party doctrine has sort of swallowed the entire Fourth Amendment…" (Masnick, [34:40–36:35])
• Government often bypasses warrant requirements for data stored outside homes/personal devices ([34:40–38:57]).
• Companies (e.g., Apple, Amazon) sometimes push back, but outcomes vary.

8. Anthropic as a Civic Gatekeeper: New vs. Old Boundaries

• The current fight centers on Anthropic’s refusal to let government agencies use its AI (Claude) on large troves of commercially acquired, third-party data for bulk analysis ([38:57–40:18]).
• Nilay draws equivalences to tech companies acting as "resistance" and standing up for user privacy: "[T]here’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…" ([40:18])

9. Escalation: Supply Chain Risk and Retaliation

• Unlike previous tech/government disputes, the Pentagon’s aggressive move—labeling Anthropic a supply chain risk—aims to destroy the company’s business for its ethical stance ([41:06–43:15]).
• Mike: "…that is an escalation."

10. The First Amendment & Compelled Speech

• Civil liberties group FIRE frames Anthropic’s case as a matter of "compelled speech": forcing a company to write code it doesn’t want to write may violate the First Amendment ([43:15–44:58]).
• Masnick: "…I do think it is a valid argument… companies definitely raised First Amendment claims… in terms of trying to build backdoors into encrypted systems."

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Notable Quotes & Memorable Moments

• On Legal Language and Power:

  "The NSA has its own dictionary that is somewhat different than the dictionary you and I use… so they can interpret words in ways that are different than the plain English meaning—including words like ‘target,’ which feels like kind of a key word."
  — Mike Masnick ([09:44])

• On Partisan Consistency:

  "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."
  — Mike Masnick ([12:50])

• On Anthropic’s Resistance:

  "…we just don’t want to be part of that. That’s the fight."
  — Nilay Patel ([23:11])

• On Legal Game-Playing:

  "The alternative theory...is that he [Sam Altman]/OpenAI...knew this but thought they could play the same game as the NSA..."
  — Mike Masnick ([24:38])

• On Surveillance Expansion:

  "…all of these revelations, these leaks, we haven’t backed it off— in fact, it’s only increased as much of our lives has gotten more and more digital."
  — Nilay Patel ([25:58])

• On Third-Party Doctrine:

  "…the third party doctrine has sort of swallowed the entire Fourth Amendment…"
  — Mike Masnick ([36:35])

• On Escalation:

  "…this administration is effectively saying if you don’t give us absolutely everything that we want… then we will effectively try to destroy your entire business. And that, that, that is an escalation."
  — Mike Masnick ([41:06])

• On Compelled Speech:

  "…it is fairly compelling compelled speech. But no, I do think it is an interesting argument."
  — Mike Masnick ([43:59])

• On the Broader Stakes:

  "Every Bill of Rights amendment has to be challenged in some form or another with every, every possible issue. I’m sure we can fit a Third Amendment violation somewhere in here as well."
  — Mike Masnick ([45:08])

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Key Timestamps

| Time | Segment | |---------|-----------------------------------------------------------------| | 01:28 | Nilay’s introduction & framing the Anthropic/Pentagon dispute | | 04:33 | Mike Masnick introduced | | 06:38 | History of surveillance laws and reinterpretation by intelligence agencies | | 09:44 | NSA’s redefinition of key legal terms (e.g., “target”) | | 12:50 | How both parties and branches expanded surveillance | | 19:26 | U.S. legal tradition and reinterpretation by government lawyers | | 21:29 | Who pushes back inside the process? (Snowden, whistleblowers) | | 23:11 | Comparing Anthropic and OpenAI stances, legal language games | | 27:06 | Potential reckoning in the Trump era due to blunt rhetoric | | 34:40 | Third-party doctrine explained, Fourth Amendment’s erosion | | 36:35 | “Everything is third party data” — implications for user privacy| | 38:57 | Difference between cloud storage and AI analysis on bulk data | | 41:06 | Legal escalation: supply chain risk and Anthropic’s resistance | | 43:15 | Compelled speech and free speech implications | | 45:08 | "Bill of Rights challenge" – philosophical ramifications |

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Language & Tone

• The discussion is energetic, occasionally sardonic, and never dry; Nilay and Mike combine legal nuance with pointed skepticism and a dash of humor.
• Nilay often frames the conversation in plain, relatable terms (“turning into the Joker,” “pinky swore”), while Mike offers historical and legal context with clarity.

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Final Thoughts

The episode makes it clear that, despite decades of public debate and occasional pushback, the surveillance state’s growth has largely been incremental and bipartisan. With AI, the stakes escalate—and companies like Anthropic are demanding to set ethical boundaries, even as the government aims to sweep past them using familiar legal tactics. This ongoing drama underscores both the fragility of statutory protections in the digital age and the unexpected role tech companies are now playing as stewards (or stumbling blocks) for constitutional rights.

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For anyone new to the story or to the legislative history of U.S. surveillance, this episode provides essential grounding, relevant case studies, and a sense of the unresolved challenges at the heart of technology, law, and state power in the AI era.

Transcript

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Hello and welcome to Decoder. I'm Nilai 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, state 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 the Law when it comes to using AI to do even More surveillance My guest today is Mike Masnik, the founder and CEO of Tector, 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 surveillance. There's what the government actually wants to do, and most importantly, there's what the government says 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 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, in blog posts and posts on X, and press conference sound bites. 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 subscribe okay, Tech Dirt founder and CEO Mike Mazdick on anthropic, the Pentagon and AI surveillance. Here we go. Mike baby, you are the founder and CEO of Tech Dirt. Welcome to Decoder.

[A]

Yeah, I'm glad to be here.

[B]

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 Tech Dirt. 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.

[A]

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

[B]

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 be. 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. I just want to set that aside because I think that is going to come into more focus all on its own, on its own schedule. The other red line that I do want to spend a lot of time on is mass surveillance.

[A]

Yeah.

[B]

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

[A]

have to do anything.

[B]

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.

[A]

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 911 world where we, the US passed the Patriot act, which had, you know, some ability for the government to engage in surveillance, which was supposed to be for, you know, 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, you know, 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, 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 12 Triple 3 3, 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, was very limited, in fact, you know, to the point that they're supposed to, you know, if they realize that they are surveilling a U.S. person, that they are supposed to immediately stop and cry foul and, you know, 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, you know, 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 data. The, the, the reports that he leaked to Glenn Greenwald and Bart Gelman and Laura, 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, any, 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, the Executive Order 12 Triple 333 from Ronald Reagan, which effectively allowed the NSA as, 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. So if, you know, 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 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 like 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 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 U.S. persons by an NSA that claims and publicly states that they do not spy on US persons.

[B]

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. Nine, 11. And the Patriot act happens in the George W. Bush administration. This is a lot of incremental bad things. Yes. Under presidents of both parties, under Congresses of both parties. How did this happen?

[A]

I mean, the, 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, that makes them look bad. Right? I mean, obviously they also want to protect Americans. Right? That's part of, 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, be really help 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.

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Typically take 15 days after rebate submission. No cash access and Card expires in 6 months. Check out in 15 minutes per line. Visit t mobile.com. 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 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, how to literally interpret the words in our statutes, in 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, that they both say it, they might, 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.

[C]

Right?

[B]

Like we, 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?

[A]

I wish I knew the exact answer, but you know, what I think it is, is it's motivated reasoning.

[B]

Right?

[A]

I mean, as a lawyer, you, you are there to sort of defend your client and the, you know, 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, the role of the adjudicator is to narrow in and figure out which side is actually correct. One of the problems with the int 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, the, you know, 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 number, but it was something like 9. Over 99% of, of applications that went to the FISA court for, you know, 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, to, 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 of, and with a very strongly motivated group of people who don't, you know, 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, that's where you end up over time, has there

[B]

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?

[A]

I mean, there obviously you had like Ed Snowden who, who leaked a bunch of documents. You had John Napier Tighe, who wrote a piece for the Washington Post in 2014, I believe, which sort of revealed the interpretation of Executive Order 12 triple three three 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 in working, you know, within the administration on intelligence community stuff are sort of bought in to that. 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, the argument that, yes, having more information may allow them to, you know, 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, when all this stuff happens in, in darkness, you will tend to lose sight of that.

[B]

I think this brings me to Anthropic. Anthropic is primarily an enterprise company they're, they're good at the government, right? They, they, 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 Master Balance. Again, I'm, I'm going to bracket out autonomous weapons. That was the other red line, but particularly on mass surveillance. Dario Mode is out there saying, we can, we can do too much. This is too dangerous. This is a fourth minute violation. And there's 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 the 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?

[A]

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, you know, 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 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. 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, I think it's, it's, it has to be either that Sam and whoever was surrounding him didn't understand how these, how these work in practice, or they did and they just assumed that, that the public wouldn't know and therefore they could get away with it.

[B]

The other thing that comes to mind, again, AI is new and it, it's so tempting to come at new technologies is that these are problems of first impression.

[A]

Yeah.

[B]

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 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 administration should just announce their intentions and see where the, the, 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, in fact, it's only increased is 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?

[A]

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, you know, presenting the other side on certain issues. We've seen some of the authorities limited in certain ways, and they, you know, 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, I think you're half right in that the, this administration is not subtle and is and just says out loud the things it shouldn't and that

[B]

we're at war with Iran. Yeah. They're just like we're doing it, it's happening right. You know, it's like we're not even going to try the dance. Yeah.

[A]

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, is I think maybe has to do more with Anthropic's 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 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, the, the struggle comes in you 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, that, you know, it's 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, 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.

[B]

We have to take another quick break. We'll be back in just a minute.

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What's the most unhinged thing of season three?

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Steven because he's so evil, I do

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think he is misunderstood.

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You see every everyone face consequences.

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It's intoxicating. The writers just know how to trick.

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Yeah, there's always a twist in this show. Tell Me Lies the official podcast January

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Tell Me Lies January 13th on Hulu

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and Hulu on Disney.

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Hey, Kara Swisher here.

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I want to let you know that

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Vox Media is returning to south by Southwest in Austin for live tapings of your favorite podcast. Join us from March 13th through the 15th for live tapings of today explained Teffy Talks, Prof. G Markets and of course your two favorite podcasts Pivot and On with Kara Swisher. The stage will also feature sessions from Brene Brown and Adam Grant, Marques Brownlee, Keith Lee, Vivian Tew and Robin Arzon. It's all part of the Vox Media Podcast stage at south by Southwest, presented by Odoo. Visit voxmedia.com S SXSW to pre register and get your special discount on your innovation badge. That's voxmedia.comsxsw to register. Really, you should register. We sell out and we hope to see you there. We're back with Tech Dirt's Mike Mastick for the break. Mike was explaining how Anthropic's reputation as the safe, conscious AI company is being put at risk by the Trump administration's blunt demand, the tech industry essentially shut up and stop 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. 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, 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, 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 could intercept it. 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 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.

[A]

Yeah. And here I have to introduce another concept that, that 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, the earliest and most obvious version of this was phone records that the phone company had of who, who you called. 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 Nile. What had been determined by multiple courts was that the, 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, 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. 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, the third party doctrine has sort of swallowed the entire Fourth Amendment to some extent, where any, 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.

[B]

And just to be specific, this means when in icloud. Yes, the government can go to Apple and get my data out of icloud without ever telling me.

[A]

Well, it's, it's, 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 is, you know, if, 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 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. 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 in or any information or anything in your own home.

[B]

I'm asking this because, you know, it's obvious to everybody listening to this, the amount of data you have on someone else's cloud server is massive. Right. Every, 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 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 in the Joker and I was like, all of this stuff that we're pretending about textualism and the plain, none of this means anything because we just horsepower to 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, like 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, 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.

[A]

Yeah. Though I think there are a few clarifications that are important here that, that make this a little bit different. And in fact, you know, it was reported, reported. I think the New York Times had this reporting first that, you know, 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, you know, 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, with, you know, Amazon or other third parties hosting your data that was cases where they were, you know, because of where they sit in the ecosystem, they were hosting your data directly with Claude. It's not that any anyone is worried about the NSA looking through like your Claude usage. Right? It's, it's about them going out and getting third party data from an Amazon or more likely, you know, the, the sort of sneaky hidden data brokers that serve ads on your phones and know all your loc, 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, we don't want our tool to be used on that data.

[B]

There's a piece of that that just feels like Apple famously stands up to the FBI, put a back door 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 a backdoor 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. And that seems like a bridge too far for this administration. Is there any coming back from that?

[A]

I mean, we'll see in the past when that's happened, and it's happened plenty of times with, with most of the, 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. But in this case, you know, 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, far 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 US 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. 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, know, traditionally there would be some sort of court case and either side could start it and it would just be a battle about, you know, what, what, you know, how the contract could be applied. But that's not what is happening here. That, that 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, that, that is an escalation.

[B]

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 today, 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, there's a lot of history here. This is some, some deep verge in tech dirt, like in the weeds, existential crisis history here. But it basically comes down to 80 that that code is speech. Writing code for a computer is a form of speech and the government can't force you to do it. 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? This compelled speech?

[A]

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, 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. 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 that is compelled speech to force us to write that kind of code. And so I think it is a valid argument. It might be. 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. I think it is an interesting and compelling argument.

[B]

It's just the nature of the second Trump administration is that it's such a blunt instrument. It's like it is almost certain we will attack all of the issues all at once. Yes.

[A]

Yeah. Yeah. And yeah. I mean, everybody, every Bill of Rights amendment has to be challenged in some form or another with every, every possible issue. I'm sure we can.

[B]

They spin the wheel.

[A]

I'm sure we can fit a Third Amendment violation somewhere in here as well.

[B]

Sure. Yeah. Claude has to live in your house.

[A]

Exactly.

[B]

It's going to be great. We're doing 1, 3, 4, and 7. Let's. 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.

[A]

Absolutely. Whenever you want me.

[B]

Before we wrap up really quickly, I want to bring on a very special guest. It's Helen Havlik, our publisher here at the Verge. Hey, Helen.

[C]

Thanks for having me on.

[B]

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?

[C]

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 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 Jeong, who's doing amazing reporting. And then lastly, in our product coverage, 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. 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 products 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.

[B]

It is true that not enough AI coverage features the question, does this work? And the Verge relentlessly asks that question, does this work?

[C]

And will people pay for it?

[B]

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, our 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.

[C]

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. 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. 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 really big subscriptions business. And that's, you know, 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. 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, like 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. 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.

[B]

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 week, weekend. It's pretty, 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. 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 weeks. Give the listeners a preview.

[C]

Yes, I'm super excited to be piloting a new ad product for this podcast. Specifically, it's called Decoder Sessions. A joke we had 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 Nilay. 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 Nilay's doing. Nilay 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.

[B]

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 ad 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. Thank you so much for joining me Quickly at the end here.

[C]

Thank you. Dli.

[B]

I'd like to thank Mike Masnick for taking time to join the coder and thank you for listening. I hope you enjoyed it. Let us know what you thought about this episode or really anything else at all. Drop us a line. You can email us at decoder@the verge.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 Decoder Pod. We also have a Tick Tock and an Instagram. They're at Dakota Pod 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. Decoder is a production of the Verge and part of the Vox Media Podcast Network. The show is produced by Kate Cox, Nick Sat. 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.

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