The news has thankfully quieted down on this front, and is mostly about the lawsuit as we build towards a hearing next week, after which we will find out if a temporary restraining order or an injunction is on the table.

The government arguments were going to be terrible no matter what, given the terrible set of facts and who was directing the argument, and their decision not to narrow their scope or compromise. But Anthropic has an uphill battle to try and get a random court to give them advance relief, so it could go either way.

See You In Court

There are two big questions in the case Anthropic vs. Department of War.

The first is, who eventually wins?

The second is, will Anthropic win a temporary restraining order?

The bar for the second is much higher at the hearing on 3/24. Yes, Anthropic very obviously should get one and it is very scary to think they might not, but as Dean Ball warns the injunction could be a rather tough ask even with this insanely damning set of facts on Anthropic’s side many times over, and its crazy list of amicus briefs.

On the FAI amicus brief for Anthropic PBC vs. DoW:

Neil Chilson: This is a narrow, careful, and persuasive brief supporting a stay of the DoW’s supply chain risk designation against Anthropic. The argument focuses on the DoW’s apparent failure to follow the statutorily-required procedures for a SCR. Well done, @JoinFAI and team.

Dean Ball points out that quite a lot of things are products made ‘in fulfillment of a defense contract,’ including for example the iPhone and iOS. Even a narrow supply chain risk designation, if it sticks, is big trouble.

The CCIA, SIIA and ITI join Anthropic’s side in an amicus brief. The members include Amazon, Apple, Google, Meta, Nvidia, OpenAI, Intel, TSMC and so on.

AI Village had the models discuss the case.

The Government Responds

The government responded with its brief on 3/17 as scheduled.

Rather than try to defend a narrow action and do something reasonable, they raised. They claimed this was about ‘conduct, not speech,’ that Anthropic was unlikely to succeed, and that there was real future ‘sabotage risk’ if Anthropic was in the supply chain, and there is no contradiction with continuing to use Anthropic systems in a shooting war and threatening DPA if Anthropic were to withdraw.

And they’re saying Anthropic’s would not suffer irreparable harm if lots of its customers and contracts were forcibly taken away.

The core argument as I understand it is that Anthropic’s actions (which are totally not speech) indicate it in particular might try to sabotage the military, because it… tried to impose some conditions on use and it negotiated hard, and venders of AI systems can do this. By their own argument, I fail to see why OpenAI is not also a supply chain risk, or why Google would not be one if it was supplying AI systems, and so on, or the designation is entirely based on whether DoW decides they trust them.

The government is literally saying that any AI system with ‘ethical restrictions’ thus is a ‘sabotage/subversion’ risk, also that the fact that Anthropic didn’t give it the terms it wants constitutes such risk. And they’re actually putting in a legal brief that Anthropic wants ‘operational control’ over the military.

They showed up with zero amicus briefs in their favor, which I find unsurprising.

They’re really going there. They did not materially retreat. If the government wins with this argument, even at the TRO hearing, then they win the right to subject every other potential AI supplier to the same treatment, and use that threat at will.

The government did not mention the ubiquitously cited theoretical ‘hypersonic missile’ incident, presumably because the lawyers laughed too hard when they heard it and also that a legal briefing would have had to include the actual transcript of what happened. They did include the claim that there was a phone call to Palantir asking about use of Claude in the Maduro raid, although the details there seem to have changed a bit.

As for their legally required assessment of these security risks, which is no doubt absurd on multiple levels, we can’t be sure because they commissioned a private vendor and are asking to keep the report under seal, because they have a confidentiality agreement with DoW and because it would give away how they do such assessments. They refuse to even share the vender name. That sounds like a fully general argument for keeping basically any report under total seal no matter what and I find it profoundly not compelling.

Alan Rozenshtein: Here’s the government’s response to Anthropic’s lawsuit. Nothing much new here. Ultimately I think the question for the court will be: given that no on seriously contests the government’s ability to refuse to purchase Anthropic’s services (and probably refuse to allow its contractors to use Claude on specific government projects), can it go further than that and do a blanket designation based on national security grounds (and same logic for Trump’s order regarding more general USG use)?

I think they can’t because the effect would be to essentially displace the whole complex edifice of procurement law (which elaborately governs individual procurements and contract negotiations)—but for all things government procurement I want to hear what @JTillipman thinks.

But there’s a separate question of whether Anthropic gets its PI. This could go either way. On the one hand, if the full secondary boycott is off the table, the threat to Anthropic is no longer existential and the court might not grant the PI. On the other hand, given that, even if the supply chain designations are enjoined, the government can still cancel individual contracts with Anthropic, it’s not clear how a PI would harm legitimate the government’s national security interests. So that’s an argument for the PI.

Alan points to the heart of the issue. Either the government is trying to harm Anthropic beyond narrow cancellation of contracts and use in fulfillment of contracts in a way that has little impact on Anthropic’s business, or the government is trying to retaliate and potentially even murder Anthropic.

If it’s the first one, there’s no reason to object to an injunction on the second one.

If it’s the second one, we desperately need an injunction on the second one.

As for whether the government can choose not to do business, that’s true for the direct DoW contract. Beyond that, it’s not that simple, because there is a procedure for doing that which was not followed, and the government is clearly retaliating for protected speech, and this is doing harm to Anthropic. We do all agree in practice that if the government wanted this to be its pound of flesh, and things stopped there, that would be acceptable. The issue is that DoJ can’t promise not to escalate further even in a few week window, and we have reports of ongoing jawboning and sending out messages to government contractors.

Jessica Tillipman told us what she thinks, reminding us that we have a procedure, called the ‘corporate death penalty,’ for excluding untrusted companies from government contracts. What was done with Anthropic is very much not that thing. That thing requires notice, an opportunity to respond, an insulated-from-political-pressure debarring official and judicial review. None of that happened here. Any nominal investigation done by the government was, by their own admission in their briefing, clearly done to support a foregone conclusion.

Retaliation and Jawboning

Removing Anthropic from direct government systems is one thing. Removing them from the military supply chain, and labeling them a ‘supply chain risk’ is another thing. Trying to lean on non-military contractors, as well as everyone else, is another thing beyond that.

All of these things are illegal retaliation against protected speech, arbitrary and capricious, and risk irreparable harm to Anthropic.

Damon Pistulka: Anthropic’s forced removal from the U.S. government is threatening critical AI nuclear safety research .

This is a reference to attempts to ensure AI doesn’t enable rogue actors to acquire nuclear weapons, which requires government cooperation since so much of these areas is classified. Those involved don’t care, and are shutting those efforts down.

As in, they are barring Anthropic from safety work. This is completely insane.

It gets worse:

Samuel Hammond: Federal contractors are currently receiving blanket emails from GSA asking if they have any subcontractual relationships with Anthropic.

Rebecca Heilweil: The General Services Administration, according to one post, seems to be interpreting the Truth Social post as a national security directive. The agency’s GitHub repository shows that Claude was recently removed for its interagency AI resource, and a person within the agency confirmed that employees could no longer access Claude internally. Still, another person at the agency tells Fast Company that no official instructions about how to actually enforce removing Claude from federal use cases have actually been sent to employees.

The temporary restraining order cannot come soon enough. When it does happen, my anticipation is that to the extent possible the government will mostly ignore it, and continue such efforts anyway. I hope that I am wrong about that.

Patriots and Tyrants

This particular government seems to be saying that if you do business with it and offer it AI, for any purpose, you give it to the government, for any purpose whatsoever, so long as the government’s own lawyers believe that use is legal. All guardrails of any kind would need to be removed, and you would not be allowed to cancel the contract.

That doesn’t sound suspicious at all.

Jessica Tillipman: In January, the Pentagon said AI governance was a “blocker” and demanded models free of usage constraints for any lawful use. In March, it labeled Anthropic a supply-chain risk. Now GSA is proposing contract language that would give the government an irrevocable license to use a commercial AI system during the contract term and bar vendors from refusing outputs based on their own discretionary safety or policy rules.

As I discussed with @axios , the question I keep coming back to is: what kind of business partner does the government want to be?

You wouldn’t give these terms to anyone else. There are good reasons for that.

One obvious legal thing you could do would be to offer that fully unlocked AI service to any other branch of the government.

For example, they might use it for internet censorship or immigration enforcement, depending on the party in power at the time, or to discover who was at a particular protest or criticized a policy. Are you okay with that? Are your employees? Remember that if the contract lasts into the next administration, you don’t know who that will be, or what they will choose to do with it.

Here is Dean Ball illustrating the other side of the potential coin:

Dean W. Ball: A hypothetical:

1. In the 2028 election, a Democrat has won. Say that it is Kamala Harris.
2. Using frontier AI systems contracted by the Department of Homeland Security, President Harris orders the creation of a new program for AI to monitor social media and notify the social media platform about posts spreading “misinformation” that “harms homeland and national security by spreading dangerous falsehoods.”
3. Many Republicans see this “misinformation” as core policy positions of their political party.
4. The AI-generated monitoring and notification system described in (2) is designed to conform to the pattern of jawboning exhibited by the Biden Administration in Murthy v. Missouri, where the Supreme Court ruled that people whose social media posts were taken down due to government pressure have no standing to sue.
5. The social media platforms create AI agents that receive the government’s AI generated requests and make decisions in seconds about whether to take down posts, deboost them, deplatform the user, etc.
6. According to very recent Supreme Court precedents, everything I have described falls into “lawful use” of an AI system by all parties involved. A person whose speech was deleted by a social media platform at the request of government does not have standing to sue the government, so long as the government did not threaten policy retaliation against the social media company. And a social media company’s content moderation policies are protected expression. Thus a person whose speech rights were harmed in this context currently has no legal recourse.
7. This is “America’s national security agencies using AI within the bounds of all lawful use.” It is also a wholly automated censorship regime.

This is barely a hypothetical. Much of it already happened *under the Biden admin.* The only difference is the use of AI.

In the world where this happens, I’d be curious to know whether thoughtful people like @Indian_Bronson would object. If xAI were one of the companies used by the government for the social media monitoring, would you encourage the company to cancel their business with the government? Or would you say they have an obligation to provide their services to the national security apparatus of USG for all lawful use?

If you would encourage xAI to cancel their contract with the government, on what principle (not qualitative judgment—universal and timeless principle!) would you distinguish between the DoW’s current insistence on “all lawful use regardless of a private party’s qualms” and xAI’s hypothetical future insistence on “all lawful use regardless of a private party’s qualms”?

It is not hard to imagine the exact same actions being taken in reverse, of course.

Or you can do something more straightforward, as his colleague suggests:

Samuel Hammond: imo his hypothetical is most plausible for the uniform application of federal civil rights law.
1) the legal precedent for intrusive federal intervention is more solid
2) AI is naturally suited to detecting implicit bias and disparate impact with fractal granularity

Dean W. Ball: Info hazard.

Dean W. Ball: “In hell, there will be nothing but law, and due process will be meticulously observed.”

Existing laws do not account for AI. Many, if enforced to the letter, would break essentially everything, and this is only one example.

Private companies are of course free to provide the government with such AI models, if they choose to do that, and want to let the government do whatever it wants.

I would think long and hard before agreeing to these terms. Once you open that door, the government may well threaten you that you need to remove any and all guardrails, at penalty of retaliation. So you need to be okay with that, while remembering the law has not caught up to AI.

No, we will not accept ‘if I don’t someone else will’ as a justification. Own it, or don’t.

Meanwhile:

Mother Jones: The Department of Homeland Security (DHS) and the US Secret Service want to build a tool for tracking US travelers’ flights and other personal information according to previously unreported documents reviewed by Mother Jones.

The Principles, Sadly, Were Always Fake

There are many in Silicon Valley who do believe in principles like freedom and markets and democracy and merit. The so-called New Tech Right is not those people.

Dean W. Ball: I think I finally put my finger on what shocks me so much about the so-called New Tech Right’s willingness to throw Anthropic under the bus and ultimately it is the abandonment of merit.

Silicon Valley was once defined by “the best wins, absolutely,” but no longer for they who affiliate with the New Tech Right. For them, “the tribe wins, absolutely.” The merit value was like, their thing. Remember the summer of 2024 and the DEI posting? Where did that go?

I never expected these guys to be political theorists or philosophers but I didn’t expect them to abandon that principle so readily, to throw it out the window in favor of chasing taxpayer-funded equity infusions and contracts that are piddling even by the standards of the MIC.

DC may well be the toughest U.S. city of them all. It chews up and spits out all kinds of meat.

Many responses were essentially ‘why are you surprised that these people turned out to have no principles other than their own raw tribe, power and profits?’

That’s largely fair. I always had more cynical expectations here than Dean Ball did, but I do think that they have managed to have proven me, even when I was calling certain people every name in the book as I fought against their lies, insufficiently cynical about those same people. At some point you’re not mad, you’re just impressed.

Other Related News

Gideon Lewis-Kraus profiles the Anthropic fight with DoW in The New Yorker.

Terms of service are almost always overly broad on purpose, and almost never fully enforced. So yes, it is reasonable for DoW to insist that they not be responsible for clauses like this:

Ryan Greenblatt: Anthropic’s Consumer ToS prohibits using Claude to cause “detriment of any type, including reputational harms”, technically broad enough to ban criticism.

I asked Claude to comment and Claude wrote: “That clause is embarrassingly overbroad. So now we’re both in violation.”

TBC, this doesn’t seem like that big of a deal, my understanding is this sort of broad clause is standard in Terms of Service (ToS). But I still think they should definitely change this…

Not that I would expect Anthropic to ever attempt to enforce such a clause in this context, and I would be shocked if they actually threatened to do so. But yes, they should remove or strictly limit this clause, as should everyone else.

Greg Ip writes in The Wall Street Journal that this battle matters to every business. If Anthropic loses its case or is otherwise bullied into submission, any other business could be next. As he writes, this is the kind of thug behavior and demand for obedience that you would expect in Russia or China, not in the United States, where the whole point of capitalism is you can choose who you do contracts with.