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The Lawfare Podcast
Scaling Laws: Export Controls: Janet Egan, Sam Winter-Levy, and Peter Harrell on the White House's Semiconductor Decision
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- [00:01]
Lawfare Podcast Announcer
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security, Chatter, Lawfare, no Bull and the Aftermath.
- [00:32]
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Janet Egan
Can I make my site softer?
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Alan Rosenstein
Can I make my site firmer?
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Peter Harrell
Can we sleep cooler?
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Kevin Frazier
It'S the lawfare Podcast. I'm Kevin Frazier, the AI Innovation and Law Fellow at the University of Texas School of Law and a senior editor at lawfare. Today we're bringing you something a little different. It's an episode from our new podcast series, Scaling Laws. Scaling Laws is a creation of lawfare and Texas Law. It has a pretty simple aim, but a huge mission. We cover the most important AI and law policy questions that are top of mind for everyone from Sam Altman to senators on the Hill to folks like you. We dive deep into the weeds of new laws, various proposals, and what the labs are up to to make sure you're up to date on the rules and regulations, standards and ideas that are shaping the future of this pivotal technology. If that sounds like something you're going to be interested in and our hunches, it is. You can find Scaling Laws wherever you subscribe to podcasts. You can also follow us on X and BlueSky. Thank you.
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Alan Rosenstein
When the AI overlords take over, what are you most excited about?
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Kevin Frazier
It's not crazy. It's just smart.
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Alan Rosenstein
And just this year, in the first six months, there have been something like a thousand laws who's actually building the.
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Kevin Frazier
Scaffolding around how it's going to work, how everyday folks are going to use it?
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Alan Rosenstein
AI only works if society lets it work.
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Kevin Frazier
There are so many questions have to.
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Alan Rosenstein
Be figured out and nobody came to my bonus class.
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Kevin Frazier
Let's enforce the rules of the road.
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Alan Rosenstein
Welcome to Scaling Laws, a podcast from Lawfare and the University of Texas School of Law that explores the intersection of AI law and policy. I'm Alan Rosenstein, Associate professor of Law at the University of Minnesota and and Research Director at lawfare. Today I'm talking to Sam Winter Levy, a fellow at the Carnegie Endowment for International Peace Janet Egan, a Senior Fellow at the center for New American Security, and Peter Harrell, a non resident fellow at Carnegie and a former Biden White House official, about the Trump administration's unprecedented deal to allow Nvidia to sell advanced AI chips to China in exchange for a 15% cut of the revenue. We discussed the deal's strategic implications for the US China tech race, the potential damage to America's international partnerships, and the serious legal constitutional questions raised by what might amount to a direct tax on exports. Sam Winter Levy, Janet Egan, and Peter Harrell, thanks for joining the podcast.
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Peter Harrell
Thanks for having me.
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Alan Rosenstein
So we have a lot to get through, but before we get into the specifics of the Nvidia export deal, I want to step back and provide a little background for the audience on what export controls are and what this regime of export controls has been in particular with respect to semiconductors and AI chips through the Biden administration and the early Trump administration. So Sam kind of set the stage and then get us right up to what happened last week, and then I'll turn it to Janet for that.
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Sam Winter Levy
Sure. Yeah. So there's a lot of backstory here. So starting in the first Trump administration and then really kind of escalating throughout the Biden administration, the U.S. government introduces a kind of series of export controls on some of the kind of core inputs for advanced AI systems today. So in particular semiconductor manufacturing equipment. And then in October 2022, during the Biden administration, advanced AI chips, which are the kind of the key computing power that you need to run these kind of increasingly powerful, increasingly popular AI systems, because the Biden administration viewed these systems as likely to have kind of major national security implications. When the Biden administration launched these controls in October 2022, at the time, the best chip you could buy were these kind of very advanced Nvidia chips. And at the time it was the Nvidia A100. Now, the kind of most Advanced Nvidia chip is the H100. These are the kind of really powerful chips that you train ChatGPT and other sorts of AI models on. In response to that, Nvidia wanted to produce a chip that was legal to sell in China. And so they produced a kind of degraded version of these chips called. One of which was the H20, which is the chip I think we're going to go on to discuss in a little bit. And just to give you a little bit of context on what the H20 is, it's not the kind of most cutting edge chip that remains banned for now. It's a chip that is less good for training powerful AI systems on, but it's a chip that's still very, very good for running an AI system for inference. So if you think about the difference between kind of training GPT 4.5, GPT 5 and running it when you actually ask it a query, the H20 chip is very good for that kind of second stage of the process. So that chip was allowed to be sold throughout the Biden administration. And during the kind of last month of the Biden administration, they released a series of new export controls that kind of tightened, cracked down on various elements of the semiconductor supply chain. But the H20 remained unbanned. You were still allowed to sell the H20, Nvidia was still allowed to sell the H20 to China. This was a kind of topic of fierce internal debate within the Biden administration. They probably would have banned the H20 had they had a few more, you know, had they had a, hypothetically another year in office. But when they Left office, the H20 was still legal for Nvidia to sell in China.
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Alan Rosenstein
And let me jump in there before we then get to what the Trump administration did. What was the effect of this? Presumably the idea was that it was going to hold our competitors, in particular China back. Did it in fact do that? I mean, I remember when Deepseek R1 came out and everyone had a complete freak out and there were some concerns whether export controls really were effective. So just, just, just talk about whether this was in fact all that effective in the stated goal.
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Sam Winter Levy
Sure, yeah. I think just kind of to take one step back just before answering that directly. I think one thing to the central debate in this whole export control conversation to understand is that the overriding premise when the Biden administration first introduces export controls is that they're trying to thread this needle. On the one hand, they want to hurt, they want to kind of cripple China's advanced AI industry. Because they think that industry has kind of key national security implications. So they don't want to sell China the most advanced AI chips. On the other hand, they also want to kind of minimize the incentive for Chinese companies to develop their own alternatives to the US semiconductor ecosystem. So they want to allow, to continue to allow U.S. companies to sell older, less powerful, less capable chips to China to try to kind of thread this needle between hurting China's AI companies, but not accelerating the indigenization of the semiconductor stack by helping China's domestic semiconductor industry. And throughout the Biden administration, there's this kind of raging debate of how you thread that needle.
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Alan Rosenstein
Is that needle threadable? I mean, I guess the reason I ask, and Janet and Peter, feel free to jump in as well here. China is a very large country, it's very sophisticated, it has ambitions. Right. This is not North Korea. They can just do things. And presumably if you are keeping the most advanced, the most cutting edge chips from them, won't that incentivize them to try to develop those chips? Right. Meet TSMC at the cutting edge or replicate the ASML lithography machines, whatever. The cutting edge bottleneck is whether or not you give them a bunch of B rated chips to, I don't know, run toasters on.
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Sam Winter Levy
Sure, we can get into this at least. I think it's one of the central kind of cruxes in this debate. I think critics of the decision to allow the US to sell the H20 would say China is already all in on indigenizing the semiconductor supply chain. They're already all in on this. They're not going to spend less effort on this just because they get access to a few more Nvidia chips. They're already committed. They're spending hundreds of billions of dollars a year. They're pumping their best talent into trying to kind of figure out how to do this themselves. That would be the argument against. That would be the argument that would suggest that China's incentive is not going to change, but based on selling additional chips to them. Just to kind of go back to your original question about whether the controls have actually worked, I mean, I think the evidence there suggests that China really is compute constrained. They really are struggling to get access to the scale of advanced chips that they need. So according to the administration itself, Huawei, at the moment the kind of main Chinese company in this domain is likely to be able to produce 200,000 chips a year. For context, Nvidia are producing 10 million, 15 million significantly more chips. Every single Chinese AI company is pretty much every single Chinese AI company is on record as saying the main thing holding back their progress is access to advanced chips at scale. US Companies also need access to more compute. That's like the key bottleneck for a lot of these, for a lot of these players. But I think a lot of the evidence suggests that China really is struggling to get access to advanced computing power. And that is probably the kind of single most important obstacle to their AI ambitions. They have the talent, they have the energy, they have plenty of capital. The thing they don't have right now is advanced AI chips, which is why this debate has become so heated, because for critics of the administration's decision, we are now kind of giving them. We are now removing one of the kind of key obstacles that are holding back China's AI companies.
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Alan Rosenstein
Okay, before we get to Jenna, why don't you just sort of finish the chronology here? So you have the Biden administration, they do these effort controls. There's this diffusion rule which goes quite beyond the China export bans, and it bans chips to a whole variety of nations and actually limits them to many to our allies because of concerns about, you know, re exportation and things of that nature. So Trump comes in and what is the overall tenor bin of the Trump export control approach to AI hardware?
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Sam Winter Levy
Yes, I say here there are kind of mixed signals, I think is one way you could put it. So the Biden administration has not banned the age 20 when they leave office. They are kind of discussing it, they're thinking about it, but they have not followed through on it. They, they have introduced a bunch of measures that kind of crack down on chip smuggling, that try to enforce the export control regime more intensely. The Trump administration enters office, talks a lot about how they kind of agree with many elements of this, many of which had started in the first Trump administration cracking down on chip smuggling, et cetera. They also have a rollback. The diffusion rule, which was one of the Biden administration's kind of big moves to try to crack down on chip smuggling. And then on the H20, in I think it's April, they reports emerge that millions of H20 chips are likely going to be sold to China, which is kind of really significant number. At the same time, Trump is escalating this kind of trade war with China. And in response to Chinese retaliation to those tariffs to the trade war on critical minerals and rare earths, the Trump administration then sends a letter to Nvidia saying, if you want to export the H20 chip, you now need a license, which was not the case previously. But and implicitly saying that that license would be denied. So it's adding a new set of controls on the H20 chip that was previously legal to sell. And then I think Janet can get more into the details of this. But last month the Trump administration then says, you will now be allowed to sell the H20s. Those licenses will be granted. H20s can flow to China. And there's various kind of conflicting accounts over whether this was wrapped up in the kind of broader trade discussions or whether this was just a decision by the US Government that when it thinks about threading the needle over where to draw the line in these kind of chip controls between cracking down on China's AI companies versus not helping their semiconductor companies by incentivizing increased purchases of Chinese domestic semiconductors, whether the US Government just decided that a different way to thread that needle would be by allowing the sales of the H20. And we can get into the exact timeline of which of those accounts seems more plausible.
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Alan Rosenstein
So, Janet, let's get into that timeline. So the Financial Times reported last week that in Nvidia and AMD will now be able to export a whole range of advanced AI semiconductors to China as long as they pay the US government 15%.
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Janet Egan
Yeah, it's a very unusual, unprecedented deal, I'd say so, essentially.
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Alan Rosenstein
Which is a very polite way of saying it's nuts, right? I mean, this is cuckoo pants, right? This is the Lawfare podcast. I'm going to be loose. My jaw dropped when I read this reporting.
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Janet Egan
It was really interesting to me to see President Trump own up directly to his negotiations with Jensen on this to say that, oh, I asked for 20%. We settled on 15%.
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Alan Rosenstein
And hey, Jensen, this is Jensen Huang, the CEO of Nvidia.
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Janet Egan
That's right.
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Alan Rosenstein
Famous leather jacket wearing, globetrotting CEO of Nvidia.
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Janet Egan
And I think what even struck me more was then flagging that there's even discussions open about then exporting the latest generation of chip, Blackwell, an unenhanced version as well. So just since April to come to August and have this complete roundabout face to change the strategy seems quite remarkable. I think there's three key reasons this deal seems like a pretty big deal to me. And the first Sam's touched on this, but it seems to erode American AI dominance just at a time when you want to preserve the strongest possible lead over China. So a common misconception is that this is an old chip, this is not a good chip. The H20 is one that China does not have and cannot make indigenously. And having more and better chips is the key differentiator that keeps the US ahead of Chinese AI development.
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Alan Rosenstein
And so just to clarify, when you say that the H20, China does not have it, you mean like China has whatever it has gotten right under the Biden administration before the Trump administration clamped down on it, but they cannot as of now, purchase more or build something with equivalent capabilities?
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Janet Egan
That's right. There's other export controls on some of the key components that go inside that chip, which is the high bandwidth memory. So China can't import the key elements that it would need to make these chips. It can't make those key elements domestically. And so now they're able to import these H20s from the US in exchange for revenue.
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Alan Rosenstein
And I just want, I want to stay on that point for a second because I think, sometimes I think maybe helpful and I'd love for you to get into this some of the details on what makes these advanced chips so, so advanced. And my understanding is that obviously chip design is very complicated, so I'm oversimplifying immensely here. But, but that you think of capabilities across a number of dimensions, one of which is clock speed, right? So these chips have some thousands of numbers of cores, each of which can do mathematical operations, you know, some millions of times per second or billions of times per second. But there's also a huge amount of data that has to transfer between different parts of these chips. And this memory bandwidth is as important of a bottleneck and is as difficult for China to reproduce in its own cutting edge chips as, as the, as the, as the clock speed. And so I, someone please correct me. My understanding was that, you know, the chips that, for example, Deep SEQ was training on, were they slower but with more memory bandwidth, or they were faster but with less memory bandwidth. And the geniuses at deepsea managed to deal with whatever problem that they had by working on the other thing.
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Janet Egan
I think it's generally understood that Deepseek was trained on H1 hundreds that were provided to China before export controls really bit and, or through smuggling as well. So those ones are the ones where they're optimizing for computational performance. So clock speed, as you put it. What the HBM does differently is so Nvidia made them to fall just below the threshold when it came to the computational performance, but then they maxed it out on this higher bandwidth memory and why that matters. So since the 2023 export controls came in, there was an emergence of a new AI learning paradigm. So it's called reasoning models or test time compute. And what this does is it uses a bunch more of computational power, not in the training phase, but at the time of deployment. So this is after you've trained a model and you've enhanced it, when you're actually using it, you're giving the model time to think and you're allowing it to connect a greater degree of information across longer time horizons. Now, high bandwidth memory is key for this. And so we're providing, it looks like we're going to be providing China chips that allow them to deploy models better and that allows models to think more, more cleverly. But it also allows you to generate more synthetic data for the next training run and it allows you to run more experiments on how to optimize the design for the next training run. And so these are key things that are going to help accelerate China's progress at frontier AI models as well, as well as just deploying it more across society.
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Alan Rosenstein
So you mentioned a number of reasons you thought this was a big deal. So obviously you have the capabilities. What are some other reasons that you mind?
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Janet Egan
Yeah, the second one, it challenges the partnership with our allies. So for the US The US cannot successfully impose export controls alone. All of the controls to date on semiconductor manufacturing equipment have been done in really close partnership with countries like the Netherlands, Japan, South Korea to some extent. And that's because a lot of these components and products aren't actually made in the US but they're made overseas by partners. So we can put controls on US Chips, sure, but that's pretty redundant if the Netherlands sell their extreme ultraviolet light machines to China and then China just makes it own. And so to date, these countries have been bound together by in depth conversations around the strategic risk and what's at stake for national security. And now it seems there's a really strong shift in the US Government. They've said allies and partners impose an economic cost on your businesses to not supply China. And now the US is saying, hey China, we'll give you some, but we're going to take some additional revenue for us. And so I can't imagine this is going to go down well in this sort of semiconductor supply chain alliance. And I'm concerned about what this means for the longevity of export controls.
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Alan Rosenstein
So I'm actually, I want to follow up on that. So as our listeners may notice your lovely Australian accent and you of course worked in the Australian government for a number of years working on sort of these really important tech policy issues. I'm just curious, like from the perspective, you know, not just of countries, for example, that you know make some of these bottleneck components. You know, the Netherlands, Germany does optics. Obviously Japan and South Korea have a lot of semiconductor manufacturing. But a country like Australia, and perhaps it's just my ignorance that my understanding is, is not an, is not a key part of the, let's say like semiconductor supply chain for advanced AI chips, but is obviously a super important partner for the U.S. you know, a Five Eyes member important intelligence partner. Like if you're, if you're sitting in Canberra and you're reading the Financial Times and you know, Jensen and Donald have come over your coffee, you know Jensen and Donald, you're reading over your flat white right, have come to some agreement like what are you thinking in terms of the US as, as a, as a strategic diplomatic partner?
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Janet Egan
I think across the world it's raising questions as to hang on if we're asked to be tough on China or if we're asked to take strong steps to, in our relationships with China that come at economic costs to us, can we be guaranteed that the US is going to be consistent and by our side in those decisions? And so I think countries around the world are probably asking that question as to, well, do we need to be hedging against the risk that there might be a grand deal struck and suddenly, you know, it'll be US and China collaborating on a lot of things that we've cut ourselves off from China from. And so I think these are, they're probably conversations happening around capitals around the world.
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Alan Rosenstein
And then just to finish up, what is the last reason you think this is such a big deal?
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Janet Egan
I think the use of an export tax is pretty unprecedented and there's been, I won't go deeply on this. I think we've got other people on the call who can speak much more clearly on this. But I have heard questions as to its legality and whether it's in violation of export control legislation. And so how durable this will be is an interesting question.
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Alan Rosenstein
All right, so that was a great tee up for the, that was a great tee up for the legal questions. So let me turn to you Peter. Is any of this legal? Let's start with the statutory issues and then we'll talk about the constitutional ones somewhat separately.
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Peter Harrell
Well, I think the question of is any of this legal is going to depend first and foremost on what this deal actually is.
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Sam Winter Levy
Right.
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Peter Harrell
We've seen press reporting and we've seen the President say that he's going to charge or that there is an agreement to charge a 15% kind of rev share fee, if you will, of Nvidia H20 sales to China, but, you know, we don't actually know how this is structured. Is this actually like a condition of the license? Is this maybe actually not a payment by Nvidia to the US Government? But is Nvidia now going to announce it's dedicating 15% of sales to, you know, building factories named after the president and 30 new American states? We don't actually know what exactly Nvidia has promised here. And I keep that in mind because I do a lot of work on trade policy. And we've seen trade deals or sort of trade term sheets over the last couple of months with the EU and Japan, where details seem very hazy and where you actually see quite different views between what Washington says is going to happen and what a foreign capital is saying. So I think we don't actually know what. What this deal actually comprises of as of today. And I just make that as a caveat. But let's posit what the press at least seems to suggest, which is that Nvidia is being charged 15% of revenue. Don't know whether that's gross. Don't know whether that's net, you know, but 15% of something related on their export of chips to. To China. I think that it is unlikely that if that is a condition of the license or related to the license, it's legal. There's actually a specific statutory provision codified at 50 USC 4815C, which is included in the 2018 Export Control Reform act, kind of the current legislative basis for US Export controls, that explicitly prohibits the Commerce Department from demanding or collecting a fee related to processing or issuing a license or to, you know, any other activity related to the export control regulation. So it's very hard for me to see, you know, if this is, in fact a fee that was demanded of Nvidia as a condition of getting the license. How to square that with the statutory provision? Now, of course, it's a question who can actually sue here? I'm assuming that Nvidia, even if this is clearly illegal as a statutory matter, I'm assuming that Nvidia, you know, at least seeing Jensen having just agreed to this, probably isn't going to turn around and sue over it.
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Janet Egan
And I kind of that.
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Peter Harrell
I mean, I kind of get that from his perspective, right, because he's looking at this as a choice of, I can either sell these chips in China and pocket 85% of the revenue, or I can not sell the chips in China and get zero China revenue. So I get why he made the decision he is, and in some sense it's not his interest to sue.
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Alan Rosenstein
And presumably Nvidia can also just jack up to 15%. Right. And like you probably think, but also.
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Peter Harrell
As Sam and I mean, yes, A, they probably think they can recoup it from their customers and B, as Sam and Janet said, I mean, these are actually three year old chips, right. Actually the cost of production of these things is their marginal cost for a unit of chip here, given these are highly, you know, fully depreciated, is quite low. So even if they eat the 15%, their margin on these chips is going to be very high.
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Alan Rosenstein
Janet, do you want to jump in?
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Janet Egan
I think it's interesting to think about Nvidia's approach to date in terms of how much they're marking down their chips to China compared to what they're selling in the US because I've heard, I've read it in some reporting that they've actually made significant discounts on chips to China already and it seems like they're looking to capture more market share there than they are to price up or include the costs in the chip themselves. I also think that as we move to a world with more inference rather than just training AI models, so in the US it makes sense to be purchasing the very latest cut of the chip like the Blackwells, because you're using them for training before they then turn into use for inference. But if you're starting to build out inference, only data centers around the world. It could be that the H20 is actually the most price competitive and best on the market now.
- [25:53]
Lawfare Podcast Announcer
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Sam Winter Levy
Why.
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Alan Rosenstein
Can I make my site firmer?
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Peter Harrell
Can we sleep cooler?
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- [32:03]
Alan Rosenstein
And from a, from a balance of, of, of kind of AI power, how big of a deal is that? And the kind of point I'm trying to get at is I think for a lot of folks, what's, what's most important if you're trying to kind of keep score and who is quote unquote winning, right? And we could have a whole conversation about whether that is even a coherent way of talking about this. But to the extent that we're going to buy into the sort of US China race, right? You know, you really think about who has the biggest models, who has the smartest models, who got another, you know, 1% on this benchmark, you know, who got another 2% on that benchmark and that's all about, or that's mostly at least about in addition to architectural advances, just kind of raw, raw compute. But if you want to actually deploy these, that's actually inference. And so whether we're thinking now or two, three, four years from now.
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Sam Winter Levy
What.
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Alan Rosenstein
Is your sense of the relative importance of inference? Compute versus training compute when it comes to, you know, the question that a normie, you know, might care about, which is who is again, quote unquote, winning China or the United States?
- [33:09]
Janet Egan
Yeah. Just a small question today.
- [33:12]
Alan Rosenstein
Welcome to the Law Fair podcast. Love the scaling loss.
- [33:17]
Janet Egan
I think inference will continue to play a really key role here and like to take a step back when we talk about this AI race, I mean, it means different things to different people. But looking at the AI action plan that came out from the Trump administration, part of how they define that was exporting US Technology around the world and having the world be based on US models. And so I think what's really relevant here is like, it's not just around building out the best models, it's about diffusing them around the world. And if you go and talk to other capitals or folks in other countries, they're less AGI pilled than in the US they're not always just focused on, wow, what's the absolute frontier of capability? They're asking for drug discovery, they're asking for use in medicine, they're asking for scientific advancement. And that's where the inference will really play a role. So those general purpose models trained up that training COMPUTE will still be so important. And only a few companies will be able to afford COMPUTE at the threshold to train that at the frontier. But I think the inference is a really key part of diffusion.
- [34:17]
Sam Winter Levy
Yeah, I mean, I think Peter should weigh in more on the legal details of this, but I think it's worth just putting some numbers on the sorts of revenue gains that the US Government might be getting out of this, just to give you some sense of the merits of this decision relative to the cost that Janet was just talking about in terms of the amount of compute that a US competitor might be getting access to here. So Nvidia, when they originally had to Write, when the H20 was originally banned by the Trump administration earlier this year, Nvidia had to write off a bunch of revenue that they would have made from this. And I think it was something on the order of 15 or 16 billion dollars that they had to kind of write off. If you think about kind of 15% of that, that's something like $600 million in revenue that the US government would be capturing. I mean, again, it depends on how it's structured. We don't know a lot of the details of this, but this is something on the order of hundreds of millions of Dollars likely, if you think about the kind of, so that's in the kind of benefit side of the thing, in the benefit side of the ledger in terms of the kind of costs, in terms of handing over kind of millions of chips that are going to be crucial for kind of deploying these models, they may well have kind of central national security implications. I think a lot of the reaction from a kind of, a lot of national security professionals has been that maybe there is some dollar value that you could put on this that might make it make sense, but it's going to be a lot more than a few hundred million dollars in US Revenue the US Government is going to capture from this deal. So just having some of those kind of numbers in mind might help kind of assess the kind of merits of, of a decision like this from the administration.
- [35:39]
Peter Harrell
Let me, let me jump in on, on that point. You know, it seems to me it is basically impossible to understand this rev share as serving a national security purpose. As Sam says, the money is kind of almost immaterial to the U.S. government given the scale of the, the, the U.S. government budget. And it also like if, if there is a national security threat, giving the US government 15%. A 15% cut does absolutely nothing to address the national security threat. Right. You could envision a way that you tailor an export control to address a national security threat. You know, you require further downgrades of the chip or you try to do end user controls or things like that. But 15% just doesn't serve a national security, a national security purpose and it's not actually going to bring in a huge amount of money. That said, so I guess what I would say is I think the way to understand this is not a national security issue, but rather Trump having decided that he thought it was okay from a national security perspective to sell the H20 to China, he bought into the arguments. These are old chips. It's better to keep the Chinese hooked on the US Chip ecosystem than develop their own. Like he just bought the substantive arguments there and then saw an opportunity to get a cut. Right. So it's not the 15% doesn't advance national security. He thought there's no national security and I issue and I can extract some, you know, revenue for the public fist here. I think that's what's going on.
- [37:20]
Alan Rosenstein
I want to pause on this because like, this is the thing that's been driving me nuts. And then we will finally get to the sort of con law part of this, which is also, I think quite interesting. So when you say Trump Getting a cut. This is a very interesting question, right? Because, you know, when I first saw some reporting around this, there was talk about, you know, Trump is, you know, they're gonna have to pay Trump 15%. This is corruption. And, you know, we can talk about the merits of this, but that's of course not what's happening. Like, at least it's not been reported that Nvidia is gonna, like, give Trump, you know, a 15% check or endow the Trump Memorial Library in, you know, Palm beach or whatever of this. It's going to the Fisk. So but then the question becomes why, like, what does Trump think this is useful? And my sense is that Trump just likes extracting things from people. Like, this is just almost a purely psychological benefit to him that, you know, the biggest, most important billionaires and industrialists, you know, come hat in hand to the White House or mar a lager or whatever, and he can dominate them. Right. And he's a businessman. Right. He's a real estate developer from Queens. And the way you dominate people is you get them to give money, even if this is all kind of pointless. Like, that's how I understand this, which doesn't really make me feel better. That's the only way I can get around this, though. This makes me uncomfortable because I do not like to psychoanalyze world leaders, especially Donald Trump. Let's start with you, Peter. And then I kind of want to hear other folks thoughts on whether I'm reading this psychodrama accurately.
- [38:51]
Peter Harrell
So I am, I am not going to be in the business of psychoanalyzing our president because it's not something I feel I have any expertise in. But I would make one maybe related point, not to a psychology, but to policy. And one thing we have seen, and I, you know, I agree, Trump seems to be a very transactional president. I do think, looking across his policy agenda, if you will, he does have idiosyncratic views of where the US Government should get tax revenue from. He doesn't actually think the US Government doesn't need tax revenue. Right. But he actually wants to see, I think, a relatively lower tax burden on incomes and a relatively higher tax burden on trade flows. Right. And we see that on his tariff front, where he talks about it as a way of raising money for the Fisk. Now we can have a whole tax debate about why that's bad tax policy, but I think that Trump in his own head is in his own weird, idiosyncratic way, looking for sources of revenue that he views as kind of free for the United States. And much as he wrongly believes that tariff revenue is free for the United States from his trade war, he may also hear kind of wrongly believe that this is a sort of free source of revenue for the United States. The one point I would make, and I just, it was an interesting point because I saw Mark Cuban, the, you know, former Dallas Mavericks owner, making this point online, which, you know, is a fair point. He pointed out, you know, progressive Democrats have tried completely unsuccessfully for the last 20 years to extract additional tax revenue out of big tech companies. Right? Completely unsuccessfully getting tax revenue out of big tech. And like, you know, it's not a ton of money, as Sam argued, but like, actually he is maybe extracting some tax revenue out of big tech here.
- [40:46]
Janet Egan
Okay, I have an idea where we can get more tax revenue and not relinquish the advantage to China. And I think what we're missing is the concept of accessing chips through the cloud. So there's this whole idea of like, why don't we just rent and not sell these chips to China? So once you've exported these physical chips, they're off into China's mainland. There's zero ability for the US to actually control who's accessing them, how they're being accumulated and amalgamated, and to what end purposes they're being used. But instead if you just have an arrangement where you have trusted US hyperscalers, like already happens, owning that compute and Chinese firms, given the assurance that yes, you can remote in and access potentially up to a threshold that would serve many of these strategic purposes, like undermining demand signals for domestic semiconductor industry in China. It also gives the US leverage looking forward as to look if geopolitical conditions change and yeah, the relationship might sour or there's risks that emerge, it can then be sort of shut off at any point as well. And I think if you're thinking about revenue streams, there are ways to sort of have your cake and eat it too. And sure, China obviously won't be as happy and neither will Nvidia at that. But at the same time, there's still opportunities here to find these middle grounds and to ensure that, you know, you get more revenue for the US government, that's great, but it also stops this comparative advantage being eroded.
- [42:15]
Alan Rosenstein
Well, let's actually talk about that for a second because I do think this question of chips versus clouds or I think Miles Brundage, who used to be at OpenAI, I think on X posted something like this is the Netflix versus DVDs model, which I thought was a Nice comparison. The cloud question is a very interesting one. I had a couple questions about that. First you said, I totally understand why the Chinese government would not be as delighted with this. I mean, it's better than nothing because you can run the sort of non national security models and whatever, but why would Nvidia care, right? I mean, Nvidia can get into cloud computing itself if it wants, right? I mean it already does that obviously on a much, much smaller scale with, with this Nvidia GeForce game, video game, cloud, cloud gaming system. So it knows how to do that even if it doesn't want to get into that. Obviously it kind of doesn't. You know, money's, money's fungible, right? It doesn't really matter if it's getting paid by China directly or if it's getting paid by a US cloud provider to serve to China. So actually why does, why is Jensen Huang so gung ho about selling to China other than, you know, or is it just a matter of, well, he's the CEO of a publicly traded company, his obligation is to his shareholders, and if he can get half a percentage more of profit, who cares about the US national interest?
- [43:37]
Janet Egan
I think there's a lot of people in the ecosystem who have different takes on this and have different assessments of what the motivations are and the key drivers behind the strategy that Nvidia is engaging in at the moment. I do think that they are aiming to get more customers rather than consolidate into just hyperscaler customers and to keep them as sort of a direct seller to many entities around the world, not just the key hyperscalers. But I don't know, Sam, did you have to add on that?
- [44:05]
Sam Winter Levy
Well, I think a kind of additional part of this puzzle, an argument that kind of critics of this deal have made, is that Nvidia is right now capacity constrained. So every chip that they're selling there's a buyer for. So one argument that people will make that kind of get to this point of what exactly are Nvidia's incentives here? They'll argue that every chip Nvidia is making already has the one who wants to buy it in the US and elsewhere. Why care so much about the Chinese market when you can't even address the full US market right now? And I think there the answer is it's more of a kind of short term, long term issue where in the short term it's true that Nvidia, at least, this may be changing now, but at least through 2024, first half of 2025, they were capacity constrained, enormous demand for these chips. If that starts to ease in the future, then you really want to kind of lock in as many additional markets as you can. And China will be a very big market for them to lose in a few years time if demand starts to ease off from other parts of the market. So I think that kind of long run desire not to kind of cut themselves off from a potentially huge additional market I think is another part of the incentives here for Nvidia.
- [45:14]
Alan Rosenstein
Jenna, I want to go back to you to kind of ask my second question about the cloud versus chips debate. You said that and this seems intuitive, that once you sell chips to China, you lose control of them. Now China gets to plug them into their domestic energy grid. There's obviously a huge story right now about how much electricity generation they are producing. They're completely putting the United States to shame. Part of it's coal, but it's also a lot of renewables. So again, once you get the they are, are chip constrained, not energy constrained. I have read some interesting proposals, some kind of thought experiments about whether in fact it is the case that it's all or nothing from a control perspective once you export the chips. Is there, is there any possibility for on chip surveillance monitoring? You know, I hate the word kill switch because policymakers seem to like just saying kill switch, assuming that you can create kill switches but a kill switch or is that just all a pipe dream and it really is the case that, look, if you're going to give someone magic sand, they're going to do whatever they want with it and you've just lost control over it at that point.
- [46:19]
Janet Egan
Yeah, great question. I think at the moment doing something like location verification where you have a chip ping to a trusted server nearby and by the time like calculating that time it takes for that signal to be received gives you within sort of a bound of estimates the location of the chip that's already doable and it's used in other technologies and it's not particularly novel. And I've seen reports that that could actually be done without major upgrades to chips. So that's something that is like low hanging fruit and can be done, but that isn't so useful if these chips are already being sent to China. That's particularly useful if you're sending chips elsewhere and saying do not send these chips to China because it lets you track smuggling routes and make sure that when chips are being diverted at a high rate from certain locations, you can increase enforcement there in a much more targeted way. But I think the broader avenue of what you could do on a chip. And there's a lot of folk exploring this. I think there's many people, for good reason who push back against this idea of kill switches. Traditionally, when you put back doors and things, people can find ways to exploit that for unintended purposes. And so there's still a lot more research and development needed to actually think about this in greater detail in terms of what are the compromises you're willing to make in terms of the assurance of the chip, or how can you make this tamper proof and robust that these things work when they're needed to? So those things are a bit further off, I think, and potentially warrant some investigation. But I think it's very different location verification on one side, doable now and then other things like more enabled control of a chip remotely. That's something that needs further work.
- [47:57]
Alan Rosenstein
Let's go back to the legal questions because I do think there's still some useful stuff there. So we talked about the statutory questions, Peter, you started talking about then the questions of who can sue. Let's just talk about the who can sue for a moment. I assume the sort of who can sue question is about standing, which is to say I can't just sue as an enraged US citizen. It has to be someone that's actually harmed by this. Presumably Nvidia is not going to sue because it's benefited by this. What about a economic competitor to Nvidia either in the chip space? I mean, maybe intel, though of course, intel probably needs a big bailout from the government. As I'm saying it, I'm hearing the problem. I mean, do you see any realistic possibility for anyone to be able to sue given sort of pretty stringent standing requirements?
- [48:47]
Peter Harrell
I mean, I'm not sure that anyone would have standing to sue unless they were A, similarly situated and B, you know, applied for a license and got told you to have to pay 15%. Right. Because otherwise, I'm just not sure who would show a harm. I mean, conceivably to me, you know, maybe, you know, a chip reseller or a competitor that wanted chips to sell comparable spec chips to China and was denied a license could sue. But I think the courts would insist they go and get, you know, see if they could get a license first and then if they were told they had to pay 15%, maybe they could, they could sue. But I'm not sure that anyone's going to have standing, you know, unless they, they can show they're directly armed here.
- [49:35]
Janet Egan
Can I ask a follow up on that? I've heard folks talk about a potential situation in which, say, Nvidia is the one that could sue, but is choosing not to yet. Imagine policies change down the line. Could there be a case of Nvidia retrospectively suing to recoup lost revenue?
- [49:54]
Peter Harrell
I think that would, A, depend on the nature of the deal and B, I don't know. I haven't thought that through. Or what the statute of limitations on any of this like, I just haven't thought through that kind of option.
- [50:06]
Alan Rosenstein
All right, to close out the law conversation, Peter, explain to me why this might be constitutional. And I will just say, and maybe I should not admit this, and if any of my students are listening, please pause. Please pause. Now, I teach constitutional law for a living. Like, quite literally, that is what the University of Minnesota Law School pays me to do. And I had no idea that the Constitution contained a provision relevant to this, which again is shame on me. But I think it does show just how bizarre all of this is. And I say this not only as a con law professor, but as someone who, at a level much less interesting than what Peter did in the White House, but when I was at Department of Justice, did export controls, did trade stuff, did cfius, and no one ever mentioned this constitutional issue. So this was a learning experience for me, as I suspect it was for many of us. But Peter, what is this constitutional issue that is floating around here?
- [50:56]
Peter Harrell
Yeah, so Article 1, Section 9 of the Constitution, which I think probably, Alan, when you're teaching it, you talk about, you know, this is a part of the Constitution that has kind of specific prohibitions on government authority. So this is a part of the Constitution that says, for example, you know, there can't be bills of attainder and things like it says the government can't issue titles of nobility. Right. Sort of some of these things that come up on these kind of this list of specifically enumerated things the US Government cannot do. And one of the specifically enumerated things that the government cannot do in Article 1, Section 9 of the Constitution, it says, no tax or duty shall be laid on articles exported from any state. And this of course is coming from, you know, colonial era, where one of the many tax related gripes the revolutionaries and the early Americans had was when Britain was trying to tax American exports to other colonies and to the rest of the world. So there's a very clear, what I think in 1789 appeared to be a very clear cut constitutional prohibition on export taxes. And I should say before getting into the analysis here, that has, by and large been true. Part of the reason this Nvidia deal seems so unprecedented is there haven't been previous efforts to tax, to the best of my knowledge, having done some of the historical research to tax exports at scale, where you do see, you know, sort of fees associated with exports, they are quite small and clearly limited to, like, the government's, you know, expenses processing something like the State Department, which governs export controls of military weapons like fighter jets and munitions. If you want to export fighter jets or munitions, you have to register with the State Department. I think it's now $4,000 a year, you know, so it's like a fairly small fee. And in fact, you can get reductions in that if you're a small exporter. And it's very clearly tied to, you know, you got somebody at the State Department reading this document over there. So, you know, we've just never seen an effort to sort of substantively tax exports previously. And part of that is this constitutional prohibition. Now, does this apply in this case? Again, let's stipulate that we don't know the details of this deal. Clearly the intent of that provision is to cover this kind of a tax on what we all think of as an export. But I think that if I were the government arguing that this is constitutional, even if maybe violating a statute, I would note that first, I believe the H20s are made in, Are actually fabbed in Taiwan. So I think you'd be arguing question of is this an export from any state. Right. I think that's kind of question number one that you would, you know, litigate here. The other one, I mean, what has been exported from, from the United States is intellectual property. Right? I mean, what's happened is you've had Nvidia design a chip here and then Nvidia send the chip somewhere out in California, send the chip design over to Taiwan to be. To be exported, to be fabbed in Taiwan. The prohibition is by its own terms, an article. And I think you'd also, if you were defending this on behalf of the government, you'd say, well, insofar as there is an export of the United States, it's intellectual property. And that is not an article under, under, you know, as, as sort of intended by the Constitution. I don't know. I, I think I, I would enjoy litigating this and arguing it is unconstitutional. I think you probably, you know, should be able to prevail, though. But I do see the governments. I do see the government, what the arguments the government would make given the export from the US's IP and this is actually an article that is being exported from Taiwan, not a U.S. state.
- [54:57]
Alan Rosenstein
And and again all of this is the merits question. There's still this lingering well, yes, first.
- [55:02]
Peter Harrell
Nvidia has to decide they want to sue here, right? I mean somebody's got to decide they want to sue. And you know, if I think about how this is likely to play out, I am, I take the point. You know, Sam and Janet, maybe down the road Nvidia could change its mind ensue maybe as then sort of thought that through my assumption is putting that aside, if this is just kind of a one off that applies to only Nvidia and amd, we may not see a lawsuit here. If as the Treasury Secretary Scott Besant suggested in a media interview yesterday, the government might apply this concept of an export tax, or at least what the headline in Bloomberg characterized as an export tax, covering Besant's remarks, I think then we will at some point see somebody decide they want to sue rather than pay an export tax.
- [55:53]
Alan Rosenstein
So I want to close out by asking what you all are going to be looking at sort of going forward, right in terms of how this deal works out, sort of what the kind of key key details are and also in particular how much of a big deal this is, this is going to be. Right. So how will we know if the export control hawks, let's call them, are right and this does in fact meaningfully advance China's capabilities either on training or inference and therefore harms US national security. Or perhaps the doves are correct and sort of in the counterfactual world where we kept sort of high export controls that simply created the conditions for the Huawei's and other Chinese tech companies to go. So why don't I I start with Sam?
- [56:51]
Sam Winter Levy
Yes, I think two things to watch moving forward. One would be the reaction from Congress. So we've already seen kind of quite a fairly significant amount of pushback to this deal from several kind of influential Republican national security voices, both kind of former Trump administration officials, but also senators and folks in Congress. So continuing to see whether Congress decides it wants to to kind of flex its muscles here, how much leverage they actually have. I think that's one thing to watch moving forward. I think the second big thing to watch moving forward is whether the administration, it seems like they've been persuaded on the age 20 that there's a national security case for easing our foreign controls for the H20 and then trying to kind of capture some of this revenue at the same time, whether we see Them applying a similar argument elsewhere in the semiconductor supply chain. So do we start to see them potentially approving the exports of even more advanced chips? Maybe they get deprecated slightly. But some of Nvidia's newest, more powerful AI chips, maybe the administration also proves the sale of those chips on a similar rationale to the case for the H20, maybe even on semiconductor manufacturing equipment. I think that would be a much bigger move for them to take. I think that would really be a pretty dramatic step. But I think those would be the kind of two big things to watch. Is Dh20 just a one off? You know, it was a kind of borderline case that the Biden administration itself kind of went backwards and forwards on. And all of this extend further in terms of this kind of final question of how will we know who's right? I mean, I think that partly hinges on how big a deal AI is in the coming years. If AI kind of fizzles out, it's kind of basically a normal technology, A lot of the national security hype around it is overrated, then maybe these sorts of deals make much more sense to do. If it turns out that AI really is the kind of core strategic technology of the coming year, of the coming years, then I think the administration's kind of calculus that it's worth trading away a massive lead in compute or kind of eating into a massive lead in compute in exchange for the preservation of Nvidia's market share and some additional kind of marginal improvements to the Treasury's revenue. If that calculus will look much less, much less appealing if we start to see the kind of real national security stakes of these AI technologies in the next three to five years.
- [59:08]
Peter Harrell
I guess I'd just say I defer to Sam and Janet on all things AI. So what I'll be watching out of this is whether the administration does try to apply these export taxes, rev share agreements on exports more broadly, and if so, what kinds of goods do they apply that to? So I kind of come at it from that perspective and against a backdrop where we have a president who has been over the last seven, eight months kind of remarkably interventionist in the American economy, especially for a Republican president. Right. I mean, we have the tariffs, we have this. They may take a stake in Intel. They've obviously expressed views on who should and shouldn't be CEOs of companies. He's a very interventionist president. And so I'll be interested to see if he views this as a new tool to be applied more broadly or if this does end up kind of being a one off that fades away.
- [60:04]
Janet Egan
I think for me, Sam covered a lot of what I'll be watching. But an additional thing I'll watch is the number of leading AI companies coming out of China, both in terms of applications and like frontier models. I think it's, it's interesting to see that, you know, there's some reporting that Deep Seq tried to use Huawei chips and then had real problems with them. And are we going to see some upticks as there's more compute injected into that ecosystem than China can make itself? That's something I watch. And then just to end on a nice hawkish note, I just wanted to gently push back on the high export controls creating conditions for tech companies like Huawei approach because I guess I look at critical minerals as an example where China's state sponsored approach and centrally directed ecosystem is able to make whole industries non competitive for others to engage in and then wipe out competition to become that sort of really central player in the supply chain. And so I think it's as we look at AI chips further, like at the moment, I'm not particularly optimistic that, well, not particularly pessimistic that China can build out massive amounts of their own chips in the near term. Longer term it'll be interesting to see if they're doing large subsidies on inferior chips to try and bring others into their ecosystem.
- [61:20]
Alan Rosenstein
I think it's a good place to end it. Peter, Janet, Sam, thanks so much for coming on Scaling Laws.
- [61:24]
Janet Egan
Thanks so much for having me.
- [61:26]
Sam Winter Levy
Yeah, thank you. Thanks.
- [61:30]
Kevin Frazier
Scaling Laws is a joint production of lawfare and the University of Texas School of Law. You can get an ad free version of this and other lawfare platform podcasts by becoming a Lawfare material supporter at our website lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Check out our written work@lawfaremedia.org you can also follow us on X and Bluesky and email us@scalinglawsawfairmedia.org this podcast was edited by by Jay Venables from Goat Rodeo. Our theme song is from Alibi Music. As always, thank you for listening.
- [62:28]
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