Legal Risks: First Amendment and Code as Speech

This week, Scott sat down with his Lawfare colleagues Kate Klonick, Molly Roberts, and Troy Edwards to talk through the week’s big national security news stories, including:

• “MisAnthropic.” On Monday, Anthropic filed a civil complaint in the Northern District of California and a petition for hearing at the Court of Appeals for the D.C. Circuit over the Department of Defense’s designation of the frontier artificial intelligence company as a “supply chain risk.” The litigation capped off weeks of building tensions between Anthropic and Pentagon officials over the firm’s two ethical red lines for the Defense Department and its use of its AI model, Claude, specifically around widespread surveillance of Americans and the use of AI and autonomous weapons. What exactly are the Pentagon’s grounds for designating Anthropic as a supply chain risk, and how does Anthropic argue that doing so is inconsistent with the law? And what might the implications be for the AI industry as a whole?
• “The Mashhadian Candidate.” Fears that Iran would respond to the ongoing Israeli-U.S. military campaign through overseas terrorism have come to a head this week, as reports emerged that U.S. intelligence had detected an encrypted message being transmitted from Iran that may serve as “an operational trigger” for assets sitting outside of the country. What do we know about Iran’s involvement in past clandestine operations, including terrorism? And what does it mean that this is all happening at a moment when the Justice Department and FBI have lost so many of their experienced national security personnel?
• “Maricopa-calypse Now.” Federal investigators have ramped up several inquiries that appear to be aimed at longstanding—and, thus far, unsubstantiated—allegations of fraud in the 2020 election that are particularly popular with President Trump and his closest supporters. Last month, FBI agents executed a search warrant on Fulton County’s election office and confiscated ballots and voting equipment used in 2020. Last week, the FBI reportedly subpoenaed records from a conservative Arizona legislator over the state senate’s audit of the 2020 election results in Maricopa County. And days later, the Department of Homeland Security’s Homeland Security Investigations office (or HSI) requested records from Arizona state officials regarding their own investigations into alleged 2020 malfeasance. What should we make of these developments? And at what point should we be concerned about the federal government's engagement in these sorts of matters in advance of the upcoming 2026 midterms?

This week’s object lessons are all-consuming. Kate is celebrating online legal analysis by drinking from her Balkinization mug. Troy is lamenting yet another slate of firings at the FBI by drinking from his EX FED mug. Scott, finding himself with unexpected free time at Union Station, devoured Barbara Tuchman’s “A Distant Mirror: The Calamitous 14th Century.” And Molly introduces us to the texturally triggering cherimoya. 

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