The Cyberlaw Podcast

With Wyndham’s surrender to the FTC after a brutal court of appeals opinion, the last outpost of resistance to the FTC’s cybersecurity agenda is Mike Daugherty, CEO of LabMD.  Daugherty refused to take the easy road and enter into a consent decree with the FTC to settle its claim that the company’s security was insufficient because of a file-sharing program installed on the corporate network.  That decision has cost Daugherty his company.  LabMD has ceased operations.  And it took him on an extraordinary odyssey through Washington that he has described in his book, The Devil Inside the Beltway, and speeches.  I caught up with Mike at the Black Hat Executive Summit where we were both speakers, and he kindly agreed to a short interview describing some of that odyssey. 

I offered the FTC equal time to offer their perspective.  So far, they haven’t taken me up on the offer, but it remains open. 

As always, the Cyberlaw Podcast welcomes feedback.  Send an e-mail to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. 

Direct download: Episode_94.mp3
Category:general -- posted at: 11:25am EST

Our guest for episode 93 is cybersecurity’s Renaissance Man. Rod Beckstrom started DHS’s National Cybersecurity Center, then headed ICANN; before and after those gigs, he was a Silicon Valley investor and officer in security startups as early as the 1990s and as recently as this year. Our interview spans Rod’s career and what it has taught him about security, privacy, law, and government.

In the news roundup, Alan Cohn and Jason Weinstein talk about proposals to require social media sites to do more about online terrorist activity. Alan and I take a dive into the EU’s achingly slow progress toward new cybersecurity rules for critical infrastructure – and how those rules will affect US companies.

Michael Vatis tells us that Michael Daugherty of LabMD is officially the only challenge facing the FTC as it sets (or at least enforces) cybersecurity requirements for American business. That’s because Wyndham Hotels has officially given up the ghost, agreeing to twenty years of privacy and security monitoring by the FTC.

Finally, Michael Vatis and I agree that encryption has become the Donald Trump of tech issues – but each of us for different reasons.

The podcast will be on hiatus over the holidays, but we won’t completely abandon you. While I was at a BlackHat Executive conference last week, I had a chance to do a short interview of Mike Daugherty about his LabMD experience, and we’ll be releasing that as a special bonus edition of the podcast over the Christmas break. (We’re holding it because I’ve offered the FTC a chance for equal time.  But we’ll be releasing the interview next week in any event, with or without the FTC’s input.)

As always, the Cyberlaw Podcast welcomes feedback.  Send an e-mail to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Direct download: Podcast_93.mp3
Category:general -- posted at: 4:47pm EST

Did China’s PLA really stop hacking US companies for commercial secrets? And does it matter? In episode 92, we ask those questions and more of two experts on the topic ‒ Washington Post reporter Ellen Nakashima, who has broken many stories on PLA hacking, and Tony Cole, the Global Government CTO with FireEye, who has fought off his share of PLA hackers.

In the news roundup, Jason Weinstein and Michael Vatis explain how the ‘cannibal cop’ beat the rap for violating the Computer Fraud and Abuse Act. Maury Shenk and Michael mull the fate of the Safe Harbor negotiations – and question whether a deal can be done before the Christmas holidays. Meanwhile, privacy activist Max Schrems is doing his best to close off the other options US companies have used to cushion the blow from losing the Safe Harbor.

The same Europeans who want to punish US tech giants for helping fight terrorism also want to punish them for not helping fight terrorism. Michael and Maury consider the heavy pressure falling on tech companies from the EU, France, Pakistan, and even the Oval Office.

Only the judicial branch still seems like safe ground for the companies. Jason and Michael explain the immunity for ISPs whose typographic errors expose innocent people to computer searches for child porn – as well as the courts’ refusal to give effect to Congress’s plan to impose liquidated damages for privacy violations. In the most strikingly newsworthy item in the podcast, Michael accuses me of not being conservative enough. And in the least newsworthy item, Jason tells us that there is still a stalemate over a law requiring a warrant for the contents of email.

As always, the Cyberlaw Podcast welcomes feedback.  Send an e-mail to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Direct download: Podcast_92.mp3
Category:general -- posted at: 11:27am EST

Is the internet really worth it? Our guest for episode 91, Jason Healey of the Atlantic Council and Columbia University, recaps a study finding that, even with a worst-case Clockwork Orange Internet, the economic benefits of networking still outweigh the losses from security failures – though the closer we get to the worst case, the more likely we are to get Leviathan Internet, where the inherently controlling aspects of the network are embraced by governments around the world.

Our post-Thanksgiving news roundup is dominated by leftovers – edible and otherwise. Larry Klayman and Judge Leon have apparently run out of time to challenge the now-deceased NSA metadata program, Michael Vatis and I note, while Section 702 has survived a rare judicial challenge.

Meanwhile, it’s beginning to look as though the FTC and LabMD really deserve each other. The FTC has launched an ill-advised appeal in its ill-advised pursuit of LabMD, Michael reports, and LabMD has returned the favor by launching a lawsuit against the three FTC staffers who pursued the company so improvidently. 

The Google cookie case has mostly crumbled, Michael tells us, but the plaintiffs still have one big bite left, raising the chilling prospect of California law as interpreted by Third Circuit judges. 

Alan Cohn describes the NRC’s new cyberattack reporting requirements – and Iranian social media attacks on government workers who don’t usually get any attention at all.

Finally, with help from loyal listener Michael Farrell, I report that China’s use of the Great Cannon to infect Western computers has been emulated by Comcast, which is using China’s technique to inject copyright warnings into users’ screens. I predict that EFF and CDT, who ignored China’s Great Cannon attacks on Western computer users and companies, will go to battle stations now that it turns out the tactic is being used by an Axis of Evil that they actually care about – Big Copyright aligned with Big ISPs.

As always, the Cyberlaw Podcast welcomes feedback.  Send an e-mail to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Direct download: Podcast_91.mp3
Category:general -- posted at: 10:37pm EST

Our guest for episode 90 is Charlie Savage, New York Times reporter, talking about Power Wars, his monumental new book on the law and politics of terrorism in the Obama (and Bush) administrations.  I pronounce it superb, deeply informative, and fairly unbiased, “for a New York Times reporter.”  With that, the fat is in the fire, and Charlie and I trade views – and occasional barbs – about how the Bush and Obama administrations handled the surveillance issues that arose after 9/11.

In the news roundup, Michael Vatis and I puzzle over the FTC’s astonishing loss on its own home court.  We wonder why the FTC failed to do the right thing and drop the LabMD case when the FTC’s source began to lose credibility by the shovel-load.  I suggest that FTC leadership was suffering from the rarely spotted “Darrel Issa Derangement Syndrome.”     

Jason Weinstein deconstructs the claim that the European Union is “cracking down” on bitcoin in response to the attacks in Paris. 

Stepping out of character, I defend the value of diplomatic “words on paper,” finding promise in the G20’s announcement that all twenty members join in condemning cyberespionage for commercial purposes.  

Michael recaps the latest in litigation over the nearly expired NSA 215 program.  D.C. Circuit Judge Kavanagh has explained why Judge Leon is wrong about the program, depriving the district court judge of the last word on the subject and demonstrating that its lawfulness can be assessed without resort to exclamation points.

Working a technology help desk could drive a man to suicide.  Until ISIS opened its own terrorist help line, though, we thought that was a bug not a feature.  In the same vein, I mock Glenn Greenwald for insisting that Snowden taught ISIS nothing about security about a week before we got to see a tech manual, apparently in use by the terror group, which invokes Fast Eddie’s advice about which remote storage systems are safe to use. 

Direct download: Podcast_90.mp3
Category:general -- posted at: 8:10pm EST

The NSA metadata program that is set to expire in two weeks was designed to provide early warning of a terror attack planned in a foreign safe haven and carried out inside the United States.  Those are some of the most deadly terror attacks we’ve seen, from 9/11 to Mumbai.  And now Paris.   

Our guest for the podcast is Mark Shuttleworth, founder of Thawte and Canonical/Ubuntu.  He makes it clear from the start that he could hardly disagree with me less on issues such as encryption and intelligence collection.  But we nonetheless get a great tour of the technology horizon.  Mark is helping to build the future of computing, from the internet of things to mobile phones, the desktop, and the cloud.  We explore what that means for privacy and security; we even touch on artificial intelligence and just how suddenly its risks will be upon us.    

In other news, Michael Vatis and I unpack Microsoft’s ground-breaking effort to avoid US jurisdiction over its cloud -- by storing data in Germany under the control of a German company.  

deal appears to be within reach in principle; the main question is how many additional enforcement concessions the EU can wring from the US.  The Paris attacks will make US concessions less likely and weaken European determination to extract them, we suspect. 

Finally, Michael explains how New York is showing its determination to out-regulate the feds when it comes to bank and insurance cybersecurity. 

As always, the Cyberlaw Podcast welcomes feedback.  Send an e-mail to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. 

So should the United States be terminating the 215 program just as the Paris attacks show why it was created?  That’s the question I ask in Episode 89 of the podcast as we watch the DC circuit cut short Judge Leon’s undignified race to give the program one last kick before it’s terminated.   Meanwhile, Alan Cohn and I handicap the US-EU talks aimed at reaching Safe Harbor 2.0.  

deal appears to be within reach in principle; the main question is how many additional enforcement concessions the EU can wring from the US.  The Paris attacks will make US concessions less likely and weaken European determination to extract them, we suspect. 

Finally, Michael explains how New York is showing its determination to out-regulate the feds when it comes to bank and insurance cybersecurity. 

As always, the Cyberlaw Podcast welcomes feedback.  Send an e-mail to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. 

Direct download: Podcast_89.mp3
Category:general -- posted at: 10:57pm EST

Where the hell are the FTC, Silicon Valley, and CDT when human rights and privacy are on the line? If the United States announced that it had been installing malware on 2% of all the laptops that crossed US borders, the lawsuits would be flying thick and fast, and every company in Silicon Valley would be rolling out technical measures to defeat the intrusion. But when China injects malware into 2% of all the computers whose queries cross into Chinese territory, no one says boo. Not the US government, not CDT or EFF, and not the big browser companies. That’s the lesson I draw from episode 88 of the podcast, featuring an in-depth discussion of China’s Great Cannon with Adam Kozy and Johannes Gilger of Crowdstrike. They expand on their 2015 Blackhat talk about China’s deployment of Great Firewall infrastructure to hijack American and Taiwanese computers and use them in a DDOS attack against Github. 

China’s first internet email, in 1987, said “Across the Great Wall we can reach every corner of the world.” And boy, did they mean it. The question now is what the other corners of the world are going to do about it. 

In other news, Michael Vatis covers the latest Safe Harbor developments, as the European Commission releases a statement saying, more or less, that American companies can expect years of litigation over the adequacy of US privacy law. Remarkably, that’s meant to be good news. 

Speaking of dubious European claims to offer good news, Michael and I note that the UK deputy data protection commissioner has announced with pride that the Right to Be Forgotten hasn’t actually “stopped the internet working.” So far; but the net is young. 

I summarize an earlier blog post claiming that the crypto wars are over and USTR has handed Jim Comey a loss while Mary Jo White gets a win. This because the Trans-Pacific Partnership trade deal included language prohibiting members from demanding encryption keys for most purposes other than financial regulation. I also acknowledge a significant caveat drawn to my attention by Simon Lester of Cato: Despite the TPP, a member is free to adopt any measure “that it considers necessary for … the protection of its own essential security.” If Jim Comey’s lawyers can’t squeeze his key access proposals into that provision, the “essential security” of their jobs is seriously at risk. 

As always, the Cyberlaw Podcast welcomes feedback.  Send an e-mail to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. 

 

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm. 

 

Direct download: Podcast_88.mp3
Category:general -- posted at: 11:26am EST

What good is CISA, anyway?

Now that both the House and Senate have passed information sharing bills that are strikingly similar but not identical, the prospects for a change in the law are good. But what are those changes, and how much difference will they make to network defenders?

That’s the topic we explore in episode 87 with our guest, Ari Schwartz. Ari has just finished a tour as senior director for cybersecurity on the United States National Security Council Staff at the White House. He and I and Alan Cohn go deep into the weeds so you won’t have to. Our conclusion? The main value of the bill is that it frees some companies from aging privacy rules that prevented information sharing with groups that include the government. It also enables companies to monitor their networks without fear of liability under even older privacy laws preventing interception of communications without all parties’ consent. The other lesson to be drawn from the bill is that privacy groups are still something of a paper tiger without business support. More than seventy senators voted for CISA over the bleeding bodies of every privacy group in the country.

In other news, Maury Shenk and I unpack the latest claim that the US and EU have agreed in principle on a deal to replace the Safe Harbor struck down by the European Court of Justice. We’re profoundly skeptical that a deal will be reached quickly, or that it will actually give companies much in the way of safety. 

Jason Weinstein provides a blow-by-blow recounting of the fight between Apple and the Justice Department. The real question is whether Magistrate Judge Orenstein will call the fight for Apple before the defendant is sentenced. We think he will.

Also in the category of “Put me in the newspaper, I’m a pro-privacy judge,” the Fourth Circuit panel that insisted on a warrant for historical cell tower location data had better enjoy their fifteen minutes of fame now. Their opinion is going to be reviewed en banc – and Jason and I are betting it won’t survive.

Finally, it looks as though privacy groups didn’t just waste money asking the Second Circuit to block the last month of the section 215 bulk collection program. They actually managed to effectively overrule the only court of appeals decision finding the program unlawful. In rejecting the privacy campaigners’ motion for an injunction, the Second Circuit declared that Congress had knowingly authorized it and therefore that it no longer violated the relevant statute. Pyrrhus salut.

As always, the Cyberlaw Podcast welcomes feedback. Send an e-mail to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Direct download: Podcast_87.mp3
Category:general -- posted at: 4:58pm EST

Are Russian hacker-spies a bunch of lethargic government drones more interested in smash-and-grabs than stealth? That’s one of the questions we pose to Mikko Hypponen in episode 86 (right after we ask about how to pronounce his name; turns out, that’s harder than you think). Mikko is the Chief Research Officer at F-Secure and a long-time expert in computer security who has spoken and consulted around the world for over 20 years. His company recently published a lengthy paper on Russian government cyberspies, which F-Secure calls “the Dukes.” Mikko describes the Dukes’ targets and tactics, including a remarkably indiscriminate attack on a Tor exit node. I press him on whether attribution is really getting better, and on whether F-Secure’s paper eases or heightens concerns about Kaspersky’s ties to Russian intelligence.

Mikko also joins us for the news roundup, where we do a damage assessment from the ECJ’s Safe Harbor demolition and I critique Brad Smith’s implausible solution to the transatlantic data rift. We explain why Israel has decided to cut off data transfers to the U.S. (hint: it’s not concerns about aggressive counterterror surveillance). 

And I wonder whether the House of Representatives passage of the Judicial Redress Act makes Jim Sensenbrenner the abused spouse of the European Commission (“I was going to give you this nice cause of action for your citizens when you slapped me upside the head with the Safe Harbor ruling. So, uh, here it is anyway. Now do you love me?”).

CISA comes to the floor at last. I scope the pending amendments. Two of them would greatly increase the “privacy tax” on information sharing; the only good thing about Senators Wyden and Heller’s proposals is how much business it will create for lawyers. Senator Franken has an amendment that strips the mask from the privacy lobby. The privacy groups that support the Franken amendment aren’t just pro-privacy, they’re anti-security. The amendment would prevent companies from sharing information that might disclose a security risk and require instead an individualized determination that the signature makes a compromise “reasonably likely.” The fight over the Cotton amendment to allow sharing with the FBI or Secret Service rather than DHS, meanwhile, looks like a turf fight disguised as a privacy issue.

In other news, we absolve CIA director Brennan of accusations of bad security in his email hack. And in the back of the paper, where the dog-bites-man stories go, CrowdStrike finds that Chinese cyberspies haven’t yet stopped stealing commercial secrets.

As always, the Cyberlaw Podcast welcomes feedback.  Send an e-mail to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Direct download: Podcast_86.mp3
Category:general -- posted at: 4:28pm EST

Want to see cyber attribution and deterrence in action? In August, a hacker pulled the names of US military personnel and others out of a corporate network and passed them to ISIL. British jihadist Junaid Hussain exulted when ISIL released the names. “They have us on their ‘hit list,’ and we have them on ours too…,” he tweeted. On the whole, I’d rather be on theirs. Two weeks after his tweet, Hussain was killed in a US airstrike, and two months after that, the hacker was arrested in Malaysia (subscription required) on a US warrant.

We explore that story and more with Gen. Michael Hayden, the only person to serve as both Director of the National Security Agency and of the Central Intelligence Agency. Gen. Hayden explains why he differs with FBI Director Comey on encryption and with the European Court of Justice on whether the US sufficiently respects privacy rights, along with other topics.

Our news roundup dwells again on the ECJ’s decision and the Article 29 Working Party press release on the decision, a release characterized by far more bold font than bold thinking. In other news, magistrates are revolting again, or maybe still, as Magistrate Judge Orenstein hints that Apple’s desire to thwart law enforcement should trump law enforcement’s interest in getting evidence off a locked phone.

Cyber insurance rates are rising, raising questions about who should be covered and whether insurance companies will do the security regulating the government is reluctant to do.

Meanwhile, we’re treated to dueling Wassenaar leaks from government. State says the intrusion software language will be revised not rewritten, while Commerce insists nothing is decided (subscription required). There’s really nothing like the last year of an administration, when every agency has its own policy agenda – and apparently its own spin room. If there were any doubt about whether Commerce is right to want an explanation from the Europeans about how (or, more accurately, whether) they’re enforcing this provision, Citizen Lab provides it with a new report showing that the surreptitious access tool sold by Europe’s FinFisher is present in more than 30 countries, not all of whose civil liberties laws meet a standard set by the United States – or even the lower bar set by the European Union.

Direct download: Podcast_85.mp3
Category:general -- posted at: 11:08am EST

In episode 84 our guest is Jack Goldsmith, Professor at Harvard Law School, a Senior Fellow at the Hoover Institution at Stanford University, and co-founder of the Lawfare blog. Before coming to Harvard, he served as Assistant Attorney General, Office of Legal Counsel and as Special Counsel to the Department of Defense. From cyberespionage to the right to be forgotten and the end of the Safe Harbor, we explore the many ways in which a globalized economy has tied the US government’s hands in cybersecurity matters – and subjected the United States to extensive extraterritorial “soft power” at the hands of Europeans. 

In the news roundup, the headline news is the continuing fallout from the ECJ’s attack on the Safe Harbor. Michael Vatis and Maury Shenk bring us up to date. Jason Weinstein explains why the latest convicted hacker thinks he should be a civil liberties hero/victim – and why weev is every bit the loathsome troll we thought he was when he went to prison.

Michael Vatis explains DOD’s latest cybersecurity rules for contractors. We conclude that DOD is boldly going where no agency has gone before – mandating cybersecurity with traditional command and control regulation. It’s an experiment that many will be watching.

And in another turnabout, banks have discovered the joys of bringing a plaintiffs’ class action – against Target for its credit card breach. We ask whether this means they’ll join the plaintiffs’ bar to oppose further class action reform. Jason also explains the latest ruling in a data breach claim against Coca Cola.

And the White House has made a decision on whether to seek legislation on law enforcement access to encryption. The memo offered three options:

  1. Don’t seek legislation and brag about it.
  2. Don’t seek legislation and keep hoping for help from Silicon Valley.
  3. Continue the current course of not seeking legislation.

To no one’s surprise, the White House has chosen not to seek legislation.

Also to no one’s surprise but almost everyone’s embarrassment, Judge Leon is still stumping relentlessly after his white whale, the NSA section 215 program, crying “You can’t die! I haven’t had a chance to kill you yet!” It looks like the program won’t be the only thing put out of its misery by the end of November.

Speaking of which, our intro music has been put out of its misery after 83 episodes and not a few complaints. Thanks to all who voted to help us choose a new theme song. And thanks especially to Jason Weinstein’s son, who won the contest going away.

As always, the Cyberlaw Podcast welcomes feedback.  Send an e-mail to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. 

Direct download: Podcast_84.mp3
Category:general -- posted at: 3:26pm EST

Bruce Schneier joins Stewart Baker and Alan Cohn for an episode recorded live in front of an audience of security and privacy professionals.  Appearing at the conference Privacy. Security. Risk. 2015., sponsored by the IAPP and the Cloud Security Alliance, Bruce Schneier talks through recent developments in law and technology.

The three of us stare into the pit opened by an overwrought (and overdue and overweening) European Court of Justice advisor. If the European Court of Justice follows his lead (and what seems to be its inclinations), we could face a true crisis in transatlantic relations.

VW’s decision to hack its own emissions control software leads to a deep dive into the internet of things that lie to us, the value (or not) of open source, and whether plausible deniability is the next skill that programmers will have to learn.

We also talk China, the OPM hack, and the unique value and unique vulnerability of biometric authenticators. Bruce and Alan dig into the proposed export control rules for intrusion software; when they’re done, so is the case for the rules. The right to be forgotten leads to an exploration of when we should delegate law-making to private companies. I promise a detailed analysis in the future of Google’s law-making to date, and hint that it will not make us more fond of private and hidden law making.

Finally, I ask a hard question about Edward Snowden that no one has asked since he first burst on the scene: Is he so in the tank for the Digital Millennium Copyright Act that he can’t imagine intelligent life anywhere in the universe without it?

As always, the Cyberlaw Podcast welcomes feedback.  Send an e-mail to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.  More importantly, we need feedback on whether to replace our theme music, and with what.  Please take a listen to the samples at www.steptoe.com/cybermusic and vote for your favorite.  Voting closes on October 9.

Direct download: Podcast_83.mp3
Category:general -- posted at: 12:38pm EST

Cyberlaw negotiations are the theme of episode 82, as the US and China strike a potentially significant agreement on commercial cyberespionage and Europeans focus on tearing up agreements with the US and intruding on US sovereignty.

Our guest for the episode is Jim Lewis, a senior fellow and director of the Strategic Technologies Program at the Center for Strategic and International Studies.  Most importantly, Jim is one of the most deeply informed and insightful commentators on China and cybersecurity.  He offers new perspectives on the Obama-Xi summit and what it means for cyberespionage.

Meanwhile, the news roundup is full of flamboyant European attacks on US sovereignty and US agreements with Europe.  In a pending case involving Facebook, a highly influential advisor to the European Court of Justice has fired both barrels pointblank at the Safe Harbor privacy agreement with the United States.  First, he concludes that any data protection authority is free to defy the primacy of Brussels and refuse to give effect to the EU’s determination that US practices under the Safe Harbor are “adequate” for data transfer purposes.  Second, he concludes that US practices are not adequate because section 702 of the Foreign Intelligence Surveillance Act and other US law permits intelligence collection of European data on a mass scale.  Maury Shenk and I agree that, if followed by the Court, this will be an enormous problem for the transatlantic relationship.  I wonder why we’re giving Europeans the protection of the Privacy Act when their institutions are actively seeking to thwart one of our most effective counterterrorism intelligence programs.

Not to be outdone, Paris put the boot in as well, telling Google that censoring search results on google.fr was not enough.  The right to be forgotten had to be extended to google.com, so that Americans and the rest of the world could be censored at the command of privacy bureaucrats in France’s data protection authority.  Maury and I identify the biggest unanswered question:  Has Google already started to censor its .com search results?

And India seems intent on playing on both sides of the US debate over encryption and lawful access.  After coming down hard for Jim Comey’s side in a draft regulation, Michael Vatis and I note, the Indian government has had a change of heart, withdrawing the draft while leaving uncertain what will replace it.

Finally, in one piece of domestic news, Jason Weinstein unpacks a ruling that refuses to enforce an SEC demand for the passcodes needed to unlock phones.

As always, the Cyberlaw Podcast welcomes feedback.  Send an e-mail to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.  More importantly, we need feedback on whether to replace our theme music, and with what.  Please take a listen to the samples at www.steptoe.com/cybermusic and vote for your favorite.  Voting closes on October 9.

Direct download: Podcast_82.mp3
Category:general -- posted at: 6:18pm EST

Episode 81 features China in the Bull Shop, as the White House prepares for President Xi’s visit and what could be ugly talks on cyber issues. Our guest commentator, Margie Gilbert, is a network security professional with service at NSA, CIA, ODNI, Congress, and the NSC. Now at Team Cymru, she’s able to offer a career’s worth of perspective on how three Presidents have tried to remedy the country’s unpreparedness for network intrusions.

In the news roundup, there’s a high likelihood that President Obama will be accusing and Xi will be denying China’s role in cyberespionage. You might say it’s a “he said, Xi said” issue. Alan Cohn and I debate whether the US should settle for a “no first use” assurance to protect critical infrastructure in peacetime.  

On encryption, the White House (and Silicon Valley) are certainly raising the issue’s visibility. But they aren’t necessarily persuading anyone who isn’t already persuaded. From MI5 to the NYDFS to the new Indian government, dissing strong encryption is a surprisingly popular pastime.

The never-ending saga of when email content can be obtained with something less than probably cause and a warrant seems to be winding down to a bizarre resolution. Agencies investigating terrorists and white collar fraud that costs consumers hundreds of millions will have to jump through the warrant hoop. Agencies looking to impose regulatory penalties or file civil claims will not. Michael Vatis, Jason Weinstein, and I wonder aloud whether this realpolitik accommodation between politicians who love civil liberties and politicians who hate banks will survive its internal contradictions.

After a decade of stutter-stepping, the EU is bailing on its own data retention law, leaving the issue, and the mess, to member states. Maury Shenk provides a definitive short analysis.

Elsewhere, Judge Leon gets the section 215 plaintiff he sought with everything short of a personal ad in Craigslist,  practically guaranteeing another storm of exclamation points in F.Supp. – followed by a lengthy proceeding to have his opinion vacated as moot.

In good news, a Heartland hacker pleads guilty. Jason Weinstein celebrates – as much as is seemly for someone involved in the case. And in a rare moment of humility, I confess to having learned something from listener criticism, as Robert Horn schools me on some of the lesser-known risks associated with health data breaches.

As always, the Cyberlaw Podcast welcomes feedback.  Send email to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. More importantly, we need feedback on whether to replace our theme music; please take a listen to the samples at http://www.steptoe.com/cybermusic and vote for your favorite. Voting closes on October 9.

Direct download: Podcast_81.mp3
Category:general -- posted at: 11:28am EST

Still trying to dig out from under our hiatus backlog, we devote episode 80 to our regulars. We’ll bring back a guest next week. This week it’s a double dose of Jason Weinstein, Michael Vatis, Stewart Baker, and Congress-watcher Doug Kantor

Michael offers an analysis of the Second Circuit’s oral argument in the Microsoft lawsuit over producing data stored in Ireland. The good news: it was a hot bench, deeply engaged, that let oral argument go to triple the usual length. The bad news for Microsoft: by far the hottest member of the panel was Judge Lynch, who made no secret of his deep opposition to Microsoft’s arguments. 

I offered a skeptical view of the US-EU umbrella “deal” on exchange of law enforcement data and the “Judicial Redress Act” that Congress seems ready to rush through in support of the agreement. The problem? It looks as though DOJ sold out the rest of government and much of industry. Justice promised to make the one change in US law the EU wants, granting Europeans a right of action under the Privacy Act, in exchange for, well, pretty much nothing except a bit of peace of mind for DOJ. Since the EU is more a receiver than sender of data, it already has a lot of leverage in data exchanges and there haven’t been many attempts to thwart the exchange of strictly criminal evidence. What the US really wants is for the EU to stop threatening the Safe Harbor, to stop penalizing US companies to pressure the US government about its use of data, and to guarantee that it isn’t holding the US to higher privacy standards than it imposes on EU governments. The DOJ-led negotiations got none of those concessions. And I’m willing to bet that the EU didn’t even give up the right to bitch, moan, and cut off data flows in the future if it doesn’t like how the umbrella applies. (On top of everything, the agreement is still under wraps, so the rush to praise and implement it is particularly imprudent.)

Michael and Jason deliberate on why Justice would obtain a text intercept order for Apple and then not react to the utterly predictable claim by Apple that it had no way to implement such an intercept. We note the further irony of Apple simultaneously defying the US government on privacy grounds while rushing to comply with Russia’s anti-privacy localization law.

The administration seems unable to impose sanctions on China’s cyberattackers or to stop talking about imposing sanctions on China’s cyberattackers. Sounds like a job for Stewart Baker! I offer my proposed sanctions for the Github attack, already laid out in detail here and here.

One barrier to sanctions may be the fear of hitting the wrong target, and in that regard, the Justice Department is wearing a full coat of egg after dropping its indictment of a purported Chinese spy amid allegations that it had simply misunderstood the technology in question. 

Doug Kantor offers a detailed and surprisingly upbeat assessment of the information-sharing bills’ chances for passage later this year. We also alert defense contractors to an expanded breach disclosure obligation.

And, finally, we decide to crowdsource the decision whether to keep our current theme music or to adopt one of three challengers. One of the candidates gets a heart-tugging endorsement from Jason that you’ll have to listen to the podcast to hear. Here’s the link to listen and vote for your favorite: www.steptoe.com/cybermusic.

 

The Cyberlaw Podcast is now open to feedback. Send your questions, suggestions for interview candidates, or topics to CyberlawPodcast@steptoe.com. If you’d like to leave a message by phone, contact us at +1 202 862 5785.

Direct download: Podcast_80.mp3
Category:general -- posted at: 10:51am EST

The cyberlaw podcast is back from hiatus with a bang. Our guest is Peter Singer, author of Ghost Fleet, a Tom Clancy-esque thriller designed to illustrate the author’s policy and military chops. The book features a military conflict with China that uses all the weapons the United States and China are likely to deploy in the next decade. These include China’s devilishly effective sabotage of the US defense supply chain, Silicon Valley’s deployment of a letter of marque, and some spot-on predictions of the likely response of our sometime allies. 

Episode 79 also recaps some of the most significant cyberlaw developments of the past month.

First, to no one’s surprise, the cybersecurity disaster just keeps getting worse, and the climate for victims does too: breach losses are being measured in the tens or even hundreds of millions of dollars, with a networking company losing $30 million and unlawful insider trading profits reaching $100 million.

Meanwhile, the courts are less than sympathetic. The Seventh Circuit cleared the way for a breach suit against Neiman Marcus, while the FTC and the Third Circuit were kicking Wyndham around the courtroom and down the courthouse steps. We wonder what exactly Wyndham did to earn the court’s ire. 

Next, we savor the “long, withdrawing, roar” of 215 metadata litigation, as privacy groups try with ever more desperation to pile a judicial ruling on top of their Congressional win. We ask what the hell the DC circuit’s splintered ruling means, and whether Judge Leon is really determined to jam still more exclamation points into the case despite its imminent mootness. (Answer from Judge Leon: Hell, yes!!!). Privacy groups are agitating for the Second Circuit to issue an injunction against the program. We ask: is that as dumb and violative of ordinary judicial procedures as it sounds? Stay tuned.

Finally, the messy fight over location data and the warrant requirement just won’t die, and may be metastasizing. Judge Koh and the Fourth Circuit say a warrant is needed for location data, revitalizing a circuit conflict that looked as though it was curing itself. Meanwhile, DOJ gets in the act, declaring as a matter of policy that federal use of stingrays needs a warrant. The result is that thousands of Baltimore cases could be at risk as a result? Luckily, Jason Weinstein hints, most of those cases wouldn’t have yielded a conviction.

 

The Cyberlaw Podcast is now open to feedback. Send your questions, suggestions for interview candidates, or topics to CyberlawPodcast@steptoe.com. If you’d like to leave a message by phone, contact us at +1 202 862 5785.

Direct download: Podcast_79.mp3
Category:general -- posted at: 12:04pm EST

Bonus Episode 78: Dmitri Alperovitch, Harvey Rishikof, Stewart Baker, and Melanie Teplinsky debate whether the United States should start doing commercial espionage. 

I know, I know, we promised that the Cyberlaw Podcast would go on hiatus for the month of August.  But we also hinted that there might be a bonus episode.  And here it is, a stimulating panel discussion sponsored by the Atlantic Council and moderated by Melanie Teplinsky.  The topic is whether the United States should abandon its longstanding policy of refusing to steal the commercial secrets of foreigners to help American companies compete.  The discussion is lively, with plenty of disagreements and an audience vote at the start and finish of the discussion to gauge how persuasive we were.  Enjoy!

 

The Cyberlaw Podcast is now open to feedback.  Send your questions, suggestions for interview candidates, or topics to CyberlawPodcast@steptoe.com.  If you’d like to leave a message by phone, contact us at +1 202 862 5785.

Direct download: Episode_78.mp3
Category:general -- posted at: 11:13am EST

Our guest for episode 77 is Bruce Andrews, the deputy secretary of the Commerce Department. Alan Cohn and I pepper Bruce with questions about export controls on cybersecurity technology, stopping commercial cyberespionage, the future of the NIST cybersecurity framework, and how we can get on future cybersecurity trade missions, among other things.

In the news roundup, Alan and I puzzle over the administration’s reluctance to blame China for its hacks of US agencies.

The furor over cybersecurity export controls continues unabated, with a couple of hundred hostile comments filed and Congress beginning to stir. Alan Cohn fills us in.

The UK high court ruling on data retention makes history but maybe only the most evanescent of law. Alan and I discuss whether the ruling will resemble Marbury v. Madison in more ways than one.

France finalizes expansion of surveillance. Bush administration figures come out against back doors. Cyberweek begins and, the cyber left hopes, ends without progress on CISA.

This Week in Prurient Cybersecurity: The first Ashley Madison subscriber is outed. And he’s Canadian. Looks like the nights really are longer up there. Ottawa apparently leads the world in percentage of would-be adulterers, followed by Washington, DC. No further comment seems necessary.

And Bloomberg says that the Chinese attempt to build a database on Americans didn’t begin with OPM or Anthem, but with the compromise of travel databases two years ago.

This time, Alan hints, the FTC may throw away the key, as it once again takes action against LifeLock. And the Seventh Circuit wades into the debate over how much harm a data breach plaintiff must suffer to have standing to sue.

 

The Cyberlaw Podcast is now open to feedback.  Send your questions, suggestions for interview candidates, or topics to CyberlawPodcast@steptoe.com.  If you’d like to leave a message by phone, contact us at +1 202 862 5785.

Direct download: Podcast_77.mp3
Category:general -- posted at: 3:37pm EST

Episode 76 of the podcast features the power couple of privacy and cybersecurity, Peter Swire and Annie Antón, both professors at Georgia Institute of Technology. I question them on topics from the USA FREEDOM Act to the enduring gulf between writing law and writing code. 

In the news roundup, as our listeners have come to expect, we do indeed return to our recurring feature, This Week in Prurient Cybersecurity, with a riff on the Ashley Madison hack. But you’ll have to wait until the end, when we’re loosened up. 

We begin more soberly, with Jason Weinstein and Michael Vatis covering the courts’ mopping up after passage of the USA FREEDOM Act. The DC Circuit has received supplemental briefs on Section 215, and the ACLU is leading the hopeless charge against the 215 program in the Second Circuit.

The Hacking Team doxxing draws attention to the risk involved in hiring hackers. When they’re disgruntled, they don’t just slam the door on the way out. Still, Alan Cohn and I can’t help but be fascinated by the Hacking Team proposal to use drones to hover over the target, intercepting his Wi-Fi connection.

In regulatory news, Alan Cohn and Jason Weinstein discuss the FERC’s revisions to the CIP cybersecurity requirements, with a focus on supply chain practices, and a Boston hospital’s settlement of HIPAA charges, prompting me to ask whether HHS’s Office of Civil Rights is the most hypocritically aggressive privacy regulator in government.

Russia’s Right to Be Forgotten law is signed, after further tweaks. And Google announces that it has officially tipped more than one million links into the dustbin of history.

I respond to listener feedback by walking back my mockery of Tony Scott’s “TLS Everywhere” initiative, noting that it might have some modest security benefits after all. Instead of “privacy theater” perhaps I should have called it a “privacy skit.” And as attribution gets better, so does the temptation to fly false flags. It looks as though the Russians will pioneer this particular development, attacking US sites under the nom de guerre of the Cyber Caliphate. And the US government response to the Russian attacks? A predictable silence.

 

As always, send your questions and suggestions for interview candidates to CyberlawPodcast@steptoe.com. If you’d like to leave a message by phone, contact us at +1 202 862 5785.

Direct download: Podcast_76.mp3
Category:general -- posted at: 4:29pm EST

Bitcoin and the blockchain – how do they work and what do they mean for financial and government services and for consumers? And who holds massive stores of bitcoin that can’t be spent without solving one of the great financial mysteries of our time? Our guest for episode 75 is Michael Casey, former senior columnist for the Wall Street Journal and – as of last week – senior advisor at the MIT Media Lab’s Digital Currency Initiative. Michael is also the author, along with his former Wall Street Journal colleague Paul Vigna, of The Age of Cryptocurrency:  How Bitcoin and Digital Money Are Challenging the Global Economic Order. Alan Cohn and Jason Weinstein interview him about bitcoin and its underestimated enabling technology, the blockchain.

In the news roundup, Meredith Rathbone, Alan Cohn, and I dive into the Commerce Department’s sweeping proposal for new regulation of the cybersecurity industry under the Wassenaar arrangement. With comments due on July 20, security companies are beginning to identify a host of unintended regulatory consequences.

The FBI and Justice Department had a surprisingly good week complaining about technologists’ deployment of ubiquitous unbreakable encryption. A group of cryptographers offered a contrary view, and I critiqued their position in the roundup and in a blog post.

Hacking Team was itself hacked, with its internal correspondence spread across the internet. One quick lesson: if anyone is expecting export controls to stop sales of hacking tools to repressive regimes, they aren’t paying attention to the Italian government’s licensing policies.

Finally, the right to be forgotten looks like a bad idea whose time has come. Jason doubts that Consumer Watchdog will succeed in smuggling the right to be forgotten into the FTC Act, perhaps because the act is already bulging at the seams. Canadian courts, in contrast, seem happy to impose their speech rules on Americans – whether or not Canadian courts have, you know, jurisdiction over the Americans.

 

As always, send your questions and suggestions for interview candidates to CyberlawPodcast@steptoe.com.  If you’d like to leave a message by phone, contact us at +1 202 862 5785.

Direct download: Episode_75.mp3
Category:general -- posted at: 4:30pm EST

Our guest commentator for episode 74 is Catherine Lotrionte, a recognized expert on international cyberlaw and the associate director of the Institute for Law, Science and Global Security at Georgetown University.  We dive deep on the United Nations Group of Government Experts, and the recent agreement of that group on a few basic norms for cyberspace.  Predictably, I break out in hives at the third mention of “norms” and default to jokes about “Cheers.”

In the news roundup, Michael Vatis and I sort through China’s ever-growing list of vague laws expressing determination to control technology for security purposes.  Jason Weinstein explains the FTC’s settlement with the makers of a stealthy digital currency mining app.  He and Michael also note the remarkably belated filing of a class action arising from the Anthem hack – and cast doubt on whether the class can be sustained.

Speaking of class actions, the OPM hack has also led to litigation.  All the Cyberlaw commentators are in the class, and none of us expect the litigation to succeed.  And speaking of the FTC, it has released new security guidance, a kind of Restatement of FTC Security Law, explaining just how wisely the FTC settled its 50-plus security cases.  I provide a quick update on the status of my FOIA lawsuit on behalf of Phil Reitinger, in which we try to find out what security standards the FTC is actually using to decide which companies are in violation of the law.

In NSA news, the Foreign Intelligence Surveillance Court says the Second Circuit’s opinion on NSA’s 215 metadata program was unpersuasive and mischaracterized the program.  In judicial circles, the trash talk doesn’t get much trashier.  Since this all becomes irrelevant when the program ends later this year, the FISC will likely have the last word.  And WikiLeaks is rolling out more alleged NSA docs, this time focusing on Germany and Brazil.  The documents don’t seem to be from Snowden, and WikiLeaks offers no provenance for them.  Hmm.  Maybe we ought to take another look at those stories claiming that WikiLeaks has been infiltrated by Russian intelligence.  

As always, send your questions and suggestions for interview candidates to CyberlawPodcast@steptoe.com.  If you’d like to leave a message by phone, contact us at +1 202 862 5785.

Direct download: Podcast_74.mp3
Category:general -- posted at: 4:14pm EST

Our guest for Episode 73 is Rob Knake, currently the Council on Foreign Relations Senior Fellow for Cyber Policy and formerly with DHS, the White House, and the Richard Clarke finishing school for cybersecurity policymakers. Rob and I are quickly embroiled in disagreement; as usual, I mock the cyberspace “norms” that Rob supports and disagree with his surprisingly common view that the US shouldn’t react strongly to Chinese hacking of the OPM database. But we come together to condemn the gobsmackingly limp US response to China’s attack on Github.

In the news roundup, Alan Cohn and Jason Weinstein explain attribution problems in the Cardinals-Astros hacking case. Somehow the Broncos also figure in the discussion.

Want to know why President Obama was foolish to promise he wouldn’t spy on the French President’s communications? The answer is supplied by WikiLeaks, which discloses that the last French President was caught trying to end run the United States on Palestinean issues. WikiLeaks of course thinks that shows American perfidy.

Google, meanwhile, fought the good fight to overcome a gag order and disclose an investigation of WikiLeaks soulmate Jake Applebaum. Most interesting item in the 300 pages of documents released by the Justice Department?

The Department’s hint that those who Twitter-bully tech companies over their transparency records may be engaged in witness intimidation.

And in a recurring feature, This Week in Prurient Cyberlaw, we unpack the surprisingly complex problem of how Google identifies and delinks revenge porn.

 

As always, send your questions and suggestions for interview candidates to CyberlawPodcast@steptoe.com.  If you’d like to leave a message by phone, contact us at +1 202 862 5785.

Direct download: Podcast_73.mp3
Category:general -- posted at: 11:50am EST

James Baker, General Counsel of the FBI, is our guest on this week’s podcast. He fearlessly tackles the FBI’s aerial surveillance capabilities, stingrays, “Going Dark,” encryption, and the bureau’s sometimes controversial attribution of cyberattacks.  But he prudently punts on the Hack of the Century, refusing to reveal details of the FBI investigation into the Houston Astros network intrusion.  

 

Direct download: Podcast_72.mp3
Category:general -- posted at: 11:22am EST

Privacy advocates are embracing a recent report recommending that the government require bulk data retention by carriers and perhaps web service providers, exercise extraterritorial jurisdiction over data stored abroad, and expand reliance on classified judicial warrants. In what alternative universe is this true, you ask? No need to look far. That’s the state of the debate in our closest ally. The recommendations were given to the United Kingdom by an independent reviewer, David Anderson. He’s our guest for Episode 71 of the Cyberlaw Podcast, and he provides a refreshingly different perspective on surveillance policy, one that makes us realize that it’s U.S. civil libertarians, not the U.S. government, who are out of step with the world.

In the news roundup, I bring Edward Snowden back for one last time – the fifteenth time I’ve done that, Michael Vatis points out. This time it’s a British government leak claiming that both Russia and China have decrypted the entire corpus of Snowden’s stolen files – including the enormous number of files that have nothing to do with surveillance and everything to do with military operations.

The OPM hack has now reached Target status, Jason Weinstein argues. It’s not the first, it’s maybe not even the worst, but it’s a hack that has captured the country’s imagination in a way that earlier warnings did not. 

You might think that the OPM hack would show why information sharing is essential. But privacy advocates continue to hold CISA hostage to yet more protections for privacy. The 14 million government officials and former officials whose privacy has been grossly abused by the OPM hack will, I’m sure, thank Senators Mike Lee and Ron Wyden for their continued obstruction of government cybersecurity efforts. In the House, the likeminded Rep. Massie has again proposed an appropriations amendment that would put new limits on the most important part of NSA’s intelligence mission – overseas collection. His amendment passed the House but shows little prospect of surviving Senate review.

In a new feature, This Week in Self-Dealing, we review Jason’s recent op-ed on the New York bitcoin regulations and Alan Cohn’s op-ed on what’s wrong with government cybersecurity policy. We close with comments on the new, extensive, and probably ill-advised Connecticut breach and security law, plus new obstacles for Twitter’s “warrant canary” first amendment lawsuit.

 

As always, send your questions and suggestions for interview candidates to CyberlawPodcast@steptoe.com. If you’d like to leave a message by phone, contact us at +1 202 862 5785.

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

Direct download: Podcast_71.mp3
Category:general -- posted at: 2:37pm EST

Our guest for Episode 70 of the Cyberlaw Podcast is Dan Kaminsky, a famous cybersecurity researcher who found and helped fix a DNS security flaw.  Dan is now the Chief Scientist at WhiteOps, but I got to know him in an unlikely-bedfellows campaign against SOPA because of its impact on DNS security. Dan and I spend most of the podcast disagreeing, largely about trust, Snowden, and security, but we do explore in detail the fact that, contrary to the Received Canon of Silicon Valley, end-to-end encryption is broken to improve security thousands if not millions of times a day by responsible corporate CISOs.  Dan also describes WhiteOps’s promising new take on identifying hackers and clickfraud on the internet.

In the news roundup, we bring back This Week in NSA for old times’ sake, highlighting the enactment of the USA FREEDOM Act and exploring its likely impact.  We mock Charlie Savage for his overwrought New York Times article claiming that NSA’s cybersecurity monitoring is a privacy issue. (We apologize to Julia Angwin, Jeff Larson, and Henrik Moltke, who shared Charlie’s byline; we’ll mock you next time, I promise.) NSA is apparently inspecting traffic from foreign sources for malware and other signatures and may also be spotting exfiltrated data as it leaves victims’ networks. Charlie and his coauthors call this “warrantless surveillance of Americans’ international Internet traffic.” Note to the New York Times:  a hacker sending me malware and stealing my files is a lot of things, but in the real world no one would call that my “international Internet traffic.”

Jason covers the broken settlement between MasterCard and Target arising from Target’s notorious Christmas 2013 breach.  And the Office of Personnel Management comes in for some well-earned criticism, not least for its lame offer of credit monitoring to the 4 million victims of what may be Chinese hacking. If it is the Chinese government, the one thing we probably don’t have to worry about is credit fraud, and given the flood of Chinese thefts of American personal data, the government needs to be giving victims better guidance about what to watch for.

Speaking of government failings, we talk about the supine US response to Putin’s trolls, even though they’re clearly testing tools to create panic and sow disinformation in the wake of a crisis in the United States. Even when they do it inside the United States, it appears that our only strategy is hope.

Michael talks about the Supreme Court ruling that will make the internet safe for violent revenge fantasies. And Jason explains the difference between the FBI’s encryption “Going Dark” campaign and the FBI’s CALEA “Going Dark” campaign:  They’re both DOA, but buried in different parts of the US Code.

 

As always, send your questions and suggestions for interview candidates to CyberlawPodcast@steptoe.com.  If you’d like to leave a message by phone, contact us at +1 202 862 5785.

Direct download: Podcast_70.mp3
Category:general -- posted at: 10:55am EST

Our guest for Episode 69 is Jason Brown, the Assistant to the Special Agent in Charge of the Cyber Intelligence Section at the U.S. Secret Service. We talk about the Secret Service’s Electronic Crimes Task Forces and their critical role in investigating data breaches affecting financial institutions, retailers and other companies. We also discuss how the Secret Service helps companies prepare for and mitigate their risk of an incident. We talk about issues that impact breach victims’ decisions about whether or how to engage with law enforcement and about how the relationship between law enforcement and Internet providers has changed in the post-Snowden world. Finally, we discuss how the changing jurisprudence relating to electronic searches is impacting the day-to-day conduct of criminal investigations.

In the news roundup, we discuss the dysfunction in the Senate that has led to the (temporary?) lapsing of the 215 program. We mull over the impact of Riley on the Sixth Circuit’s decision in a laptop search case. The DOJ Criminal Division talks about hackback, and Yahoo! faces class certification in an email scanning case. In our “prurient interest” feature, a database of Adult Friend Finder users is for sale online. And we weigh the possible impact of New York’s BitLicense regulations. Once again, Maury Shenk joins us to talk about developments in Europe, including new Dutch breach notification requirements, Skype’s efforts to push back against Belgian intercept law, and discussions about new EU cybersecurity rules that could have a significant impact on US providers.

 

As always, send your questions and suggestions for interview candidates to CyberlawPodcast@steptoe.com.  If you’d like to leave a message by phone, contact us at +1 202 862 5785.

Direct download: Podcast_69.mp3
Category:general -- posted at: 2:48pm EST

Our guests for Episode 68 include Julian Sanchez, senior fellow at the CATO Institute where he studies issues at the busy intersection of technology, privacy, and civil liberties, with a particular focus on national security and intelligence surveillance. They also include the entire May meeting of ISSA- NOVA, which kindly invited the Cyberlaw Podcast to go walkabout once again. The audience provides useful feedback on several of the topics covered in this episode.

We begin with This Week in NSA.  And even though we had no idea how the Senate process would end up, neither it turns out did Majority Leader McConnell or anyone else. Our remarks on the Congressional dynamic remain as relevant now as when we made them, despite our intimations of obsolescence. We also cover an early judicial decision on insurance coverage for data breaches (subscription required), the US indictment of (another!) six Chinese economic espionage agents, and the personal data orphaned by Radio Shack’s bankruptcy.

More importantly, we seize on a flimsy pretext to revisit Max Mosley’s five-hour, five hooker sadomasochistic orgy (subscription required) and his self-defeating efforts to wipe it from the internet by threats of lawsuit. It turns out he’s now reached a settlement with Google. I speculate that perhaps we’ve misread Mosley all this time. Maybe he’s doing this because of the Streisand effect, not in spite of it. It’s like he wants the internet to punish him, or something …

Returning to serious coverage, we note that CCIPS and the Justice Department may be suffering from Baker Derangement Syndrome in the face of my defense of private cyber-investigation that goes beyond network boundaries. The Department’s latest effort involves persuading CSIS and a group of CISOs to join a draft paper that looks suspiciously like a DOJ brief in opposition to the Cyberlaw Podcast. And the supposed consensus among CISOs that’s identified in the paper breaks down quickly, rejected ten to one in an informal poll of the ISSA-NOVA audience.

Julian and I mix it up over the new, revived Crypto Wars, as I challenge the claim that building access to encryption systems is always a bad idea. That, I say, will come as news to all the network security administrators who access end-to-end TLS sessions on a routine basis because the security consequences of not “breaking” that crypto are worse than the corporate front door. He recommends that I ask Dan Kaminskyto comment on that statement, and since Dan will be a guest on the podcast soon, we’ll all get to hear his answer.

 

The Cyberlaw Podcast is now open to feedback.  Send your questions, suggestions for interview candidates, or topics to CyberlawPodcast@steptoe.com.  If you’d like to leave a message by phone, contact us at +1 202 862 5785.

Direct download: Podcast_68.mp3
Category:general -- posted at: 4:59pm EST

Our guest for Episode 67 is Dan Geer, a legendary computer security commentator and current CISO for In-Q-Tel. We review Dan’s recommendations for improving computer security, including mandatory reporting of intrusions, liability for proprietary software, striking back at hackers – at least in some ways – and getting the government to purchase and fix vulnerabilities. We agree on the inherent foolishness of the Internet voting movement, but I disagree with Dan on the right to be forgotten, and I predict that net neutrality will lead to the opposite of what he wants – both more regulation of operators and more limits on what the operators are allowed to carry.

As with Bruce Schneier, I accuse Dan of a kind of digital Romanticism for advocating improbable personal defenses like using Tor for no reason, having multiple online identities, swapping affinity cards, and paying your therapist under an assumed name. But Dan makes me eat my words.

More from Dan can be found here, here, and here.

In the news roundup, we introduce Alan Cohn, yet another recent alumnus of the DHS Policy office now at Steptoe. We also revive This Week in NSA, pooling our collective inability to predict what the week will hold for the 215 metadata program. We muse about border laptop searches, questioning both DOJ’s choice of battleground and the ability of judges to withstand a PR campaign by the privacy lobby. We cover a FOIA case to find out if the FTC actually has security standards – a case filed by Phil Reitinger and Steptoe. The roundup ends with the plane-hacking case, the FBI’s Stingray guidance, and the first anniversary of the EU’s misbegotten Right to Be Forgotten.

 

The Cyberlaw Podcast is now open to feedback.  Send your questions, suggestions for interview candidates, or topics to CyberlawPodcast@steptoe.com.  If you’d like to leave a message by phone, contact us at +1 202 862 5785.

Direct download: Podcast_67.mp3
Category:general -- posted at: 12:15pm EST

The Triple Entente Beer Summit was a great success, with an audience that filled the Washington Firehouse loft and a cast that mashed up Lawfare, Rational Security, and the Steptoe Cyberlaw Podcast.  We attribute the podcast’s freewheeling interchange to the engaged audience, our profound respect for each other, and, mostly, the beer. After a discussion of between the combined panels, we throw the event over to the audience, which demonstrates that we could have produced almost as good a program by randomly selecting audience members to appear on the panel with us.

 

Direct download: Triple_Entente_Beer_Summit.mp3
Category:general -- posted at: 7:03am EST

Episode 65 would be ugly if it weren’t so much fun.  Our guest is Bruce Schneier, cryptographer, computer science and privacy guru, and author of the best-selling Data and Goliath – a book I annotated every few pages of with the words, “Bruce, you can’t possibly really believe this.” And that’s pretty much how the interview goes, as Bruce and I mix it up over hackbacks, whether everyone but government should be allowed to use Big Data tools, Edward Snowden, whether “mass surveillance” has value in fighting terrorism, and whether damaging cyberattacks are really infrequent and hard to attribute. We disagree mightily – and with civility.

The news roundup covers Congress’s debate over NSA and section 215. The House is showing a dismaying efficiency in moving bad bills while the Senate is mired in what may turn out to be more productive confusion (see, e.g., S. 1035 and S. 1123). 

We unpack the Supreme Court’s grant of certiorari in Spokeo.

A new and troubling development in cyber insecurity was demonstrated by the malware Cryptowall, which infected readers of the Huffington Post via ads for Hugo Boss, then encrypted the readers’ hard drives and held their data for ransom. We ask whether the ad networks or even the web publishers will eventually be held liable for transmitting the infected ads via HuffPo ads for Hugo Boss. The Senate Homeland Security Committee wrote a report on malvertising risks and liabilities last year that concludes with the view that liability couldn’t be established because none of the participants in the online advertising industry is directly responsible for the harm. I think the Senate Homeland Security committee has never litigated in the Eastern District of Texas.

In quick news, Goldman’s “Flash Boy” has been convicted again. The FCC says it doesn’t regulate Stingrays, except to require FBI approval for purchasers. The US and Japan deepen their cyber defense relationship, and Prime Minister Abe gets standing O for calling out (shh! Chinese) cybertheft of IP. And, DOJ releases cybersecurity guidance that is surprisingly good – but for what I call its fatally flawed view of hacking back (at least that’s what I meant when I called the authors “jackasses”).

 

As always, send your questions and suggestions for interview candidates to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Direct download: Podcast_65.mp3
Category:general -- posted at: 4:21pm EST

Our guest for episode 64 of the Cyberlaw Podcast is Mary DeRosa, the chief lawyer for the National Security Council during the early years of the Obama Administration, and now a Distinguished Visitor at Georgetown University Law Center. We ask Mary to walk us through a hypothetical set of NSC meetings on the Sony breach and the US response, flagging the legal issues and offices that come to the table. She helps me unpack the differences between the use of force, countermeasures, and an armed attack – and confirms that I have no future at the State Department – an overdetermined outcome if ever there was one. It’s a great primer on the practical ways in which cyberconflict is lawyered (or, in my view, overlawyered). 

In the news roundup, I have to choose between defending the New York Times and defending Hillary Clinton. I choose Hillary, arguing that despite NYT innuendo the Russians aren’t dumb enough to pay tens of millions for a State Department “yes’ vote in CFIUS. Because as far as anyone knows, the State Department has never voted anything but “yes” in CFIUS. 

The House has passed two cyber information sharing bills ‒ H.R. 1560 and H.R. 1731 ‒ and at every stage of the process, the sponsors made concessions to the privacy lobby, which simply pocketed the concessions and moved the goal posts. Michael Vatis and I note that the bill that came out of the Intelligence Committee contained a “privacy tax” on private sector information sharing that will discourage sharing. And the bill as amended on the floor was worse – potentially stripping encryption of its status as a protected “defensive measure” under the act. If privacy groups hadn’t demanded the change, they’d already be screaming about how the House hates crypto. Now the bill moves to the Senate, where it is wrapped around the axle of NSA’s215 metadata program. Debate over that program must conclude by May 22 and will, I predict, be Hobbesian: nasty, brutish, and short. 

Maury Shenk and I discuss the EU’s gift that keeps on giving:  “Mad Dog” Oettinger, the high European official who finally threw away the mask, admitting a determination to regulate US tech companies until Europeans can climb back into the ring. There are rumors that his office is considering a vast new regulatory program for electronic platforms. Meanwhile, a bunch of senior UK intelligence officials are calling US Internet companies ‘terrorist-friendly’ for enabling encrypted communications. 

We quickly reprise the news from RSA: Jeh JohnsonAsh Carter, John Carlin, Tom Wheeler, and Michael Daniel were all in San Francisco last week.  Carter announced a DOD cyberwar strategy that looked at best like a plan to plan for cyberwar but still managed to be an improvement over past DOD efforts. Jeh Johnson wants DHS to have an office in Silicon Valley. And Michael Daniel admitted that the government is still looking for an escrow-type crypto solution. 

Finally, another FTC privacy case is settled, as the Commission declares that the lack of an instore-tracking opt-out is unfair, or deceptive, or newsworthy, or whatever the FTC’s standard for prosecution is these days. Jason Weinstein introduces me to my new heroes –  Maureen Ohlhausen and Joshua Wright‒ the two FTC commissioners who dissented from this lawless decision. 

Direct download: Podcast_64.mp3
Category:general -- posted at: 1:18pm EST

Our guest for episode 63 of the Cyberlaw Podcast is Alan Cohn, former Assistant Secretary for Strategy, Planning, Analysis & Risk in the DHS Office of Policy and a recent addition at Steptoe. Alan brings to bear nearly a decade of experience at DHS to measure the Department’s growth. He explains how it has undertaken and largely delivered a new civilian cybersecurity infrastructure. And, while Congress dithers, it has begun to build an information sharing network quite independent of the legislative incentives now on offer. Alan also offers his insights into emerging technologies and the risks they may pose, including drones, sensors, and cryptocurrencies.

In the news roundup, the consensus story of the week is the return of Jason Weinstein from a five-week absence, only some of it justified by family vacation and other worthwhile endeavors.  In second place is the concerted European attack on Google and the rest of the US tech sectorMichael Vatis and I mull over a high-ranking European official’s astonishing gaffe in admitting the truth behind the effort – that it’s an attempt to regulate US technology until European industry can compete. Good luck with that.

In the House, Doug Kantor reminds us, it’s cyberweek, so the data breach law has immediately collapsed into such uncertainty that its Democratic sponsor even voted to keep it in committee. The bill has gone back to the shop for repairs to its bipartisan credentials, and the Obama administration, which says it supports a bill, seems to be keeping its distance from the messy business of actually legislating.

Meanwhile, Jason explains why cops are paying ransom to cybercrooks to get their data decrypted; Michael tells us a district court has given life to class action Google Wallet privacy claims under a sweeping theory; and I note that Julian Assange’s Wikileaks has hit a new low in offering a searchable database of stolen Sony email messages. Finally, the SEC’s Mary Jo White is taking heat for standing in the way of ECPA amendments, and the Chinese technological autarky movement seems to be alive and well, with a little help from US companies.

As always, send your questions and suggestions for interview candidates to CyberlawPodcast@steptoe.comor leave a message at +1 202 862 5785.

Download the sixty-third episode (mp3).

 

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Direct download: Podcast_63.mp3
Category:general -- posted at: 10:59am EST

Our guest for Episode 62 is Dmitri Alperovitch, co-founder and CTO of CrowdStrike Inc. and former Vice President of Threat Research at McAfee. Dmitri unveils a new Crowdstrike case study in which his company was able to impose high costs on an elite Chinese hacking team. The hackers steadily escalated the sophistication of their attacks on one of Crowdstrike’s customers until they finally unlimbered a zero-day. When even that failed, and the producer was alerted to the vulnerability, the attackers found themselves still locked out and now down one zero-day. We mull the possibility that there’s a glimmer of hope for defenders.

Dmitri and I also unpack the Great Cannon -- China’s answer to 4Chan’s Low-Orbit Ion Cannon.  Citizen Lab’s report strongly suggests that the Chinese government used its censorship system to deliberately infect about 2% of the Baidu queries coming from outside China.  The government injected a script into the outsiders’ machines.  The script then DDOSed Github, a U.S. entity that had been making the New York Times available to Chinese readers along with numerous open source projects. The attack is novel, shows a creative and dangerous use of China’s Great Firewall, and provoked not the slightest response from the U.S. government. I ask why any company in the United States that uses the Baidu search engine or serves China-based ads should not be required to notify users that their machines may be infected with hostile code before allowing them to receive ads or conduct searches. Finally, finding something good to say about the FTC’s jurisdiction, I ask why it isn’t deceptive and unfair to automatically expose U.S. consumers to such a risk.

In other news:  The courts are raking the Mississippi Attorney General over the coals for an ill-considered attack on Google. The DEA’s bulk collection program is still undercovered.  The FCC is racing the FTC to investigate big telecom and internet companies for privacy violations. The Baker Plan for punishing North Korea in response to its attack on Sony has been implemented. And I break out my suits and ties from the early 1990s to celebrate the return of split-key escrowed encryption and arguments over the meaning of CALEA.   

As always, send your questions and suggestions for interview candidates to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the sixty-second episode (mp3).

 

Subscribe to the Cyberlaw Podcast here. We are also now on iTunes and Pocket Casts!

Direct download: Podcast_62.mp3
Category:general -- posted at: 3:26pm EST

Our guest for episode 61 of the Cyberlaw podcast is Joseph Nye, former dean of the Kennedy School at Harvard and three-time national security official for State, Defense, and the National Intelligence Council.  We get a magisterial overview of the challenge posed by cyberweapons, how they resemble and differ from nuclear weapons, and (in passing) some tips on how to do cross-country skiing in the White Mountains.

In the news roundup, Meredith Rathbone explains details of the new sanctions program for those who carry out cyber attacks on US companies.  I mock the tech press reporters who think this must be about Snowden because, well, everything is about Snowden.  Michael Vatis endorses John Oliver’s very funny interview of Edward Snowden.  Not just funny, it’s an embarrassment to all the so-called journalists who’ve interviewed Snowden for the last year without once asking him a question that made him squirm.  In contrast, Oliver almost effortlessly exposes Snowden’s dissembling and irresponsibility.  He hits NSA below the belt as well.

Ben Cooper explains the Ninth Circuit decision refusing to apply disability accommodation requirements to web-only businesses (he filed an amicus brief in the case), and we speculate on the likelihood of a cert grant.

While we’re speculating on judicial outcomes, Maury Shenk takes us through the arguments over the data protection Safe Harbor before the European Court of Justice.  We both think the arguments suggest considerable hostility toward the Safe Harbor.  An unfavorable ECJ decision could greatly complicate the lives of companies that depend on it to allow extensive data transfers across the Atlantic.  And great complications are exactly what we expect.

As always, send your questions and suggestions for interview candidates to CyberlawPodcast@steptoe.comor leave a message at +1 202 862 5785.

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

Direct download: Podcast_61.mp3
Category:general -- posted at: 3:49pm EST

Episode 60 of the Cyberlaw Podcast features Paul Rosenzweig, founder of Red Branch Consulting PLLC and Senior Advisor to The Chertoff Group.  Most importantly he was a superb Deputy Assistant Secretary for Policy in the Department of Homeland Security when I was Assistant Secretary.

Paul discusses the latest developments in ICANN, almost persuading me that I should find them interesting.  He expresses skepticism about the US government’s effort to win WTO scrutiny of China’s indigenous bank technology rules; he also sees the DDOS attack on GitHubas a cheap exercise in Chinese extraterritorial censorship.

Michael Vatis, meanwhile, fills us in on two new cyberlaw cases whose importance is only outweighed by their weirdness. And I dissect the House cybersecurity information sharing bill, concluding that it has gone so far to appease the unappeasable privacy lobby that it may actually discourage information sharing.

 

As always, send your questions and suggestions for interview candidates to CyberlawPodcast@steptoe.comor leave a message at +1 202 862 5785.

Direct download: Podcast_60.mp3
Category:general -- posted at: 4:17pm EST

Richard Bejtlich is our guest for episode 59 of the Cyberlaw Podcast. Richard is the Chief Security Strategist at FireEye, an adviser to Threat Stack, Sqrrl, and Critical Stack, and a fellow at Brookings. We explore the significance of China’s recently publicized acknowledgment that it has a cyberwar strategy, FireEye’s disclosure of a gang using hacking to support insider trading, and NSA director Rogers’s recent statement that the US may need to use its offensive cyber capabilities in ways that will deter cyberattacks. 

In the news roundup, class action defense litigator Jennifer Quinn-Barabanov explains why major automakers are facing cybersecurity lawsuits now, before car-hacking has caused any identifiable damage.  I explain how to keep your aging car and swap out its twelve-year-old car radio for a cool new Bluetooth enabled sound system.  Michael Vatis disassembles the “$10 million” Target settlement and casts doubt on how much victims will recover.

Michael also covers the approval by a Judicial Conference advisory committee of a rule allowing warrants to extend past judicial district lines, explaining why it may not be such a big deal.  Maury Shenk, former head of Steptoe’s London office and now a lawyer and a private equity investor and adviser, jumps in to discuss the Chinese cyberwar strategy document as well as China’s effort to exclude US technology companies from its market.

 

As always, send your questions and suggestions for interview candidates to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Direct download: Podcast_59.mp3
Category:general -- posted at: 3:59pm EST

In episode 58 of the Cyberlaw Podcast, our guest is Andy Ozment, who heads the DHS cybersecurity unit charged with helping improve cybersecurity in the private sector and the civilian agencies of the federal government. We ask how his agency's responsibilities differ from NSA's and FBI's, quote scripture to question his pronunciation of ISAO, dig into the question whether sharing countermeasures is a prelude to cybervigilantism, and address the crucial question of how lawyers should organize cybersecurity information sharing organizations (hint: the fewer lawyers and the more clients the better). In the news roundup, we revisit the cybersecurity implications of net neutrality, and Stephanie Roy finds evidence that leads me to conclude that the FCC has stolen the FTC's playbook (and, for all we know, deflated the FTC's football). This ought to at least help AT&T in its fight with the FTC over throttling, but that's no sure bet.

I explain why Hillary Clinton's email server was a security disaster for the first two months of her tenure – and engage in utterly unsupported speculation that she closed the biggest security gap in March 2009 because someone in the intelligence community caught foreign governments reading her mail.

In news with better grounding, the Wyndham case goes to the Third Circuit and the bench is hot. We explain why this is good for Wyndham. In other litigation news, the feds respond to Microsoft in the Irish warrant case. Michael and I agree that the Justice Department is praying for a cold bench.

Finally, in two updates from earlier podcasts, it looks as though China may have backed down on backdoors, for now, so Silicon Valley can go back to worrying about Jim Comey. And, I explain my claim from last week's show that the FREAK vulnerability is overhyped to support a simplistic civil libertarian morality tale.

 

As always, send your questions and suggestions for interview candidates to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Direct download: Podcast_58.mp3
Category:general -- posted at: 10:54am EST

This episode of the podcast features Rep. Mike Rogers, former chairman of the House intelligence committee, Doug Kantor, our expert on all things cyber in Congress, and Maury Shenk, calling in from London.  Mike Rogers is now a nationally-syndicated radio host on Westwood One, a CNN national security commentator, and an adviser to Trident Capital’s new cybersecurity fund. The former chairman addresses a host of issues -- gaps in CFIUS, the future of the President’s new cyber threat integration center, the risk of rogue state cyberattacks on US infrastructure – as well as the issues we cover in the news roundup. 

These include Maury’s take on China’s toughening policy toward US technology, the prospects for a workable bill renewing section 215 (the ex-chairman is not as sanguine as Doug Kantor and I) and the administration’s new privacy bill.  (Our take: the bill is ideal for the Twitter age, since you still have 137 characters left after typing “DOA”.)   Maury updates us on the latest reason for delay in adoption of a new European data protection regulation. Doug Kantor and Mike Rogers consider the prospects for an information sharing bill and comment on privacy groups’ goalpost-moving style of congressional negotiation. 

And, finally, I respond to Edward Snowden’s claim that he wants to move to Switzerland by reminding him (and the Swiss)  what he said about them the last time he lived there.  (Said Snowden: “You guys can’t say I look gay any more. I’m living in Switzerland. I’m the straightest-looking man in the country.” Geneva is “nightmarishly expensive and horrifically classist,” and “I have never, EVER seen a people more racist than the swiss.”  Apparently a year in Moscow broadened his horizons.)

 

As always, send your questions and suggestions for interview candidates to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Direct download: Podcast_57.mp3
Category:general -- posted at: 3:32pm EST

Our guest for Episode 56 of the Cyberlaw Podcast is Siobhan Gorman, who broke many of the top cybersecurity stories for the Wall Street Journal until she left late last year to join the Brunswick Group, which does crisis communications for private companies.  Siobhan comments on the flood of attribution stories in recent days, including the US government’s almost casual attribution of the Sands Las Vegas cyberattack to Iran and the leaked attribution of the Saudi Aramco and US bank attacks to the same nation.  She also compares private sector cyber crisis planning to the US government’s coordination (or lack thereof) in responding to the Sony attack.

In other news, Stephanie Roy and I take a deep and slightly off-center dive into the FCC’s net neutrality ruling.  I predict that within five years the FCC will have used its new Title II authority to impose cybersecurity requirements on US ISPs.  (And in ten years, I suspect, there will be a debate in the FCC over whether to throttle or disfavor communications services that don’t cooperate with the FBI’s effort to deny perfectly encrypted security to criminals.) Stephanie demurs.

Michael Vatis and I chew over China’s “overdetermined” (h/t Mickey Kauspolicy of ousting American tech products in favor of Chinese competitors, the prospects of class action plaintiffs in the Komodia/Superfish/Lenovo flap, and NY financial regulator Benjamin Lawsky’s war on the password.

 

We finally get listener feedback to read on the air, as Michael Samway congratulates Nuala O’Connor for her masterly handling of, well, me.  Those who think they can do a better job of humiliating me will have their work cut out for them, but they’re welcome to try, sending emails to CyberlawPodcast@steptoe.comail and voice mails to +1 202 862 5785.

Direct download: Podcast_56.mp3
Category:general -- posted at: 4:19pm EST

In Episode 55 of the Cyberlaw Podcast, we revive This Week in NSA to explore the claim that GCHQ stole mass quantities of cell phone encryption keys.  Meanwhile, Jason explains the complex political battles over Rule 41, Michael explains why so many companies have rallied to Twitter’s first amendment claim against the Justice Department, and both of them explain how Yahoo! managed to beat the government’s indefinite gag order – and why Yahoo! might even be right.  After which we melt down into the bottomless hot mess of liability and litigation that surrounds the Lenovo/Superfish/Komodia/Lavasoft flap.

Our interview is with the charming and feisty CEO of the Center for Democracy and Technology, Nuala O’Connor.  Nuala and I square off over end-to-end encryption, privacy, and section 215, while managing to find common ground on TLS and even child-rearing.

As always, send your questions and suggestions for interview candidates to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Direct download: Podcast_55.mp3
Category:general -- posted at: 2:06pm EST

Episode 54 of the Cyberlaw Podcast features a guest appearance by Lawfare’s own Ben Wittes, discussing cybersecurity in the context of his forthcoming book, The Future of Violence, authored by Ben and Gabriella Blum.  (The future of violence, you won’t be surprised to hear, looks bright.)  Ben also floats the idea of taping an episode of all the Lawfare-affiliated podcasts in a bar with some of our listeners.  More on that idea to come.

In the news roundup, I cover the President’s surprisingly news-light cybersecurity summit in Silicon Valley.  Jason comments on state attorneys generals’ predictable sniping at Anthem for delays in identifying all the potential victims of its hack.  I note with satisfaction a serious loss by EFF in the Jewel lawsuit over the US government’s access to AT&T traffic.  And Jason lays out a report  by the New York State Department of Financial Services on insurance company cybersecurity.

We both express concern about two Kaspersky security reports that identify new hacking tactics and new dangers for computer networks.  The patient infiltration of large bank networks and the extraction of hundreds of millions of dollars casts doubt on the safety of banking systems around the world.  Equally troubling is the discovery that what Kaspersky calls the “Equation” group used firmware exploits to achieve enduring access to a wide variety of hard drives.  (Though Kaspersky’s claim that the access depended on having the hard drive makers’ source code looks wrong.)

 

As always, send your questions, suggestions for interview candidates and offers to stand a round at the Beer Summit to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Direct download: Podcast_54.mp3
Category:general -- posted at: 9:58am EST

In this week’s episode of the Cyberlaw Podcast, I take our new mobile recording equipment to Paris to talk about Europe’s cybersecurity directive with Alex Klimburg, of the Hague Institute for Strategic Studies and the Harvard Kennedy School’s Belfer Center.  The directive is in its final stages after a two-year buildup, and the most recent drafts suggest that the EU is finding it hard to muster the will for heavy regulation in this area.

In our news roundup, Jason Weinstein covers the Anthem hackand probable Chinese responsibilityfor it.  I point out that American privacy groups have said more or less nothing about the idea that a massive database about Americans might be assembled by China.

Stephanie Roy explains the FCC’s proposed net neutrality regs. And Doug Kantor lays odds on the five most prominent cybersecurity proposals.  Short version:  information-sharing is looking doable, and a national breach law might be as well.  CFAA changes look less easy, and the ECPA changes are stuck in a fight between people who hate Wall Street and privacy campaigners. The President’s $14 billion appropriation request for cybersecurity will get sliced, diced, and roasted, but he’ll likely end up with a lot of that money.

Cybersecurity scrutiny continues for financial institutions.  Jason reports on two recent regulators’ warning shots.  And I cover a variety of surveillance news, including the irony that a UK tribunal declaredthat an otherwise unlawful GCHQ practice had been saved by none other than Edward Snowden, who provided the transparency the tribunal considered necessary.  Thanks, Eddie!

 

The Cyberlaw Podcast is now open to feedback.  Send your questions, suggestions for interview candidates, or topics to CyberlawPodcast@steptoe.com.  If you’d like to leave a message by phone, contact us at +1 202 862 5785.

Direct download: Podcast_53.mp3
Category:general -- posted at: 11:37am EST

In this week’s episode, our guest is Rebecca Richards, NSA’s director of privacy and civil liberties.  We ask the tough questions:   Is her title an elaborate hoax or is she the busiest woman on the planet?  How long will it be before privacy groups blame the Seattle Seahawks’ loss on NSA’s policy of intercepting everything?  How do you tell an extroverted NSA engineer from an introvert?  And, more seriously, now that acting within the law isn’t apparently enough, how can an intelligence agency assure Americans that it shares their values without exposing all its capabilities? 

In the week’s news, Jason Weinstein, Michael Vatis and I explore the DEA’s license plate collection program and what it means, among other things, for future Supreme Court jurisprudence on location and the fourth amendment.   We take on the WikiLeaks-Google flap and conclude that there’s less there than meets the eye. 

Jason celebrates a festival of FTC news.   The staff report on the Internet of Things provokes a commissioner to dissent from feel-good privacy bromides.  The FTC data security scalp count grows to 53, with more on the way.  We discover that the FTC has aspirations to become the Federal Telecommunications Commission, regulating telecommunications throttling as well as cramming – and apparently forcing the FCC into the business of regulating hotels.  To be fair, we find ourselves rooting for the Commission as it brings the hammer down on a revenge porn site

And Michael finds the key to understanding China’s policies on cybersecurity and encryption.

 

The Cyberlaw Podcast is now open to feedback.  Send your questions, suggestions for interview candidates, or topics to CyberlawPodcast@steptoe.com.  If you’d like to leave a message by phone, contact us at +1 202 862 5785.

Direct download: Podcast_52.mp3
Category:general -- posted at: 4:03pm EST

Episode 51 of the podcast features a debate on attributing cyberattacks.  Our two guests, Thomas Rid and Jeffrey Carr, disagree sharply about how and how well recent cyberattacks can be attributed.  Thomas Rid is a Professor of Security Studies at King’s College London and the author of Cyber War Will Not Take Place as well as a recent paper on how attribution should be done.  Jeffrey Carr, the founder and CEO of Taia Global, remains profoundly skeptical about the accuracy of most attribution efforts in recent years. 

I question both of them, relying heavily on questions supplied by attribution aficionados via Twitter (@langnergroup, @NateBeachW, @janwinter15, @pwnallthethings, and @marcwrogers, among others).

I ask why cyber attribution is so controversial.  Is it a hangover from the Iraq war?  Snowdenista sentiment?  Or the publicity to be gained from challenging official attributions? 

We debate whether using secret attribution evidence is inherently questionable or an essential tool for ensuring successful attribution.  

I also call out the security experts who heaped scorn on the FBI for its initial fingering of North Korea as the source of the Sony attack.  Which of them recanted as the evidence mounted, and which ones doubled down?  Details in the podcast. 

In the news roundup, Jason Weinstein and I are joined by Ed Krauland, a partner in Steptoe’s International Department in DC. Ed outlines the likely impact on technology trade of President Obama’s lifting of Cuba sanctions (short answer:  not much).  I linger over the evidence that Europe has swung from hating US tech firms for being too cozy with government to hating them for not being cozy enough: the EU’s top counterterrorism official wants to prevent firms from selling unbreakable encryption, and the French government wants them to take down more terror-related online speech.  Later, I spike the ball, pointing to a Pew poll showing that NSA is holding its own in American opinion since the first Snowden revelations and that young voters have a far more favorable view of the agency than those over 65.

 

In US privacy litigation, Jason tells us that the class action over CarrierIQ’s storage of phone records has gotten a haircut, as the court throws out wiretap claims against hardware makers, and that LabMD has lost yet another peripheral battle in its campaign to force the FTC to spell out exactly what security measures it expects from private companies.  And we debate the significance of the revelations about DEA's Hemisphere Project.

Direct download: Podcast_51.mp3
Category:general -- posted at: 10:57am EST

Our guest for Episode 50 of the Steptoe Cyberlaw Podcast is David Sanger, the New York Times reporter who broke the detailed story of Stuxnet in his book,  Confront and Conceal: Obama's Secret Wars and Surprising Use of American Power.  David talks about his latest story, recounting how North Korea developed its cyberattack network, and how the National Security Agency managed to compromise the network sufficiently to attribute the Sony attack.  We talk about how understanding the White House helped him break a story that seemed to be about NSA and the FBI, North Korean hackers’ resemblance to East German Olympic swimmers, and the future of cyberwar.

Michael Vatis and I also cover a news-rich week, beginning with capsule summaries of the President’s State of the Union proposals for legislation on cybersecurity information sharing, breach notification, and Computer Fraud and Abuse Act amendments.

We touch on Europe’s new commitment to antiterrorism surveillance, which officially puts a still-Snowden-ridden United States out of step with just about every developed nation.

I try to summarize the new National Academy of Sciences study on why there isn’t an easy software substitute for bulk collection.  (Short answer:  If you want to recreate the past, you have to bulk-collect the present.)

We ask whether the DEA was the inspiration for NSA’s 215 bulk collection program, call out Rep. Sensenbrenner, who evidently skipped the DEA briefings as well as NSA’s, and wonder why Justice didn’t explain to Congress last year that NSA’s program wasn’t that big a leap from the Justice Department’s own bulk collection – instead of quietly trying to bury its program when the heat built up on NSA.  (OK, we didn’t really wonder why Justice did that.)

If you judge by their joint press conference, Prime Minister Cameron seems to have done more to convert President Obama to skepticism about widespread unbreakable encryption than Jim Comey did.  Save your Clipper Chips, key escrow will rise again!

 

Finally, Centcom’s public affairs team, which can’t keep ISIS sympathizers out of its Twitter and YouTube feeds, deserves 24 hours of deep embarrassment, which is surprisingly exactly what it gets.

Direct download: Podcast_50.mp3
Category:general -- posted at: 12:23pm EST

Our guest commentator for episode 49 of the Steptoe Cyberlaw podcast is Juan Zarate, a senior adviser at the Center for Strategic and International Studies (CSIS), the senior national security analyst for CBS News, a visiting lecturer at the Harvard Law School, and Chairman and Co-Founder of the Financial Integrity Network.  Before joining CSIS, Juan was the first ever assistant secretary of the treasury for terrorist financing and financial crimes.

We inaugurate a new headline news feature, “News or Snooze.” Some highlights:

·         EU Data Supervisor Presses for Privacy Overhaul in 2015” – Hit the snooze button and you can hear this again in 2016.  And probably 2017 too.

·          “New Credit Cards May Fall Short on Fraud Control” – This is news for everyone who thought we were moving to chip and pin to get better credit card security.

·         FBI Says Warrants Not Needed for Stingrays, Senators Express Doubts” – No surprises here.

·          “Lyft and Uber answer Sen. Franken” – Will consumers punish Uber for its privacy woes and reward Lyft for playing nice with the Senator?  Stewart bets that they won’t.

·          “Sony Hackers ‘Got Sloppy’ says FBI director” – This is news:  Jim Comey provides new evidence supporting the North Korea attribution.  Skeptics move to a new grassy knoll.

·         French terror attacks:  Big news for surveillance in both Europe and the US.  The ghost of Edward Snowden is starting to fade, as are prospects for dumping the NSA 215 program.

In the interview, Juan Zarate and Steptoe’s own Meredith Rathbone lead us through a bracing discussion of U.S. sanctions on North Korea for the Sony attack.  Bottom line:  the Treasury sanctions announced so far are unlikely to have much impact, but they do open the door to future approaches that could.  Juan endorses tougher OFAC sanctions for the beneficiaries of cyberespionage and international sanctions for attacks on banks.  He even has a kind word for letters of marque that would give the private sector more authority to pursue cyberattackers.  By the end, he’s demonstrated anew why we call him the Lord Byron of cyberpolicy. 

 

We remind everyone that the Podcast welcomes feedback, either by email (CyberlawPodcast@steptoe.com) or voicemail (+1 202 862 5785).

Direct download: Podcast_49.mp3
Category:general -- posted at: 12:35pm EST

Our guest for the first podcast of 2015 is Jim Lewis, a senior fellow and director of the Strategic Technologies Program at CSIS, where he writes on technology, security, and the international economy.

We try a new, slightly shorter format for 2015, with quick takes on a batch of headlines:

We dig a little deeper into other stories. 

  • FBI investigates Banks for Revenge Hacking of Iran: Stewart, Jason, and Jim Lewis debate the wisdom of taking down DDOS command and control servers without waiting for the government. And Israel’s role as a haven for private hacking back.
  • And, of course, all things Sony: We discuss the weird “grassy knoll” determination to blame someone other than North Korea. Turns out many of those challenging the FBI’s attribution have questionable credentials or are outspoken Snowden supporters, calling into question their judgment. We deprecate US financial sanctions on North Korea as a deterrent and the South Korean who is taking seriously Stewart’s suggestion that The Interview be dropped on the North from balloons. 
  • Finally, Jim Lewis offers his insider’s view of China’s approach to cyber conflict – the norms that apply in cyberwar, where cyberweapons fit into China’s warfighting doctrine, and a possible split between China’s leadership and its PLA on when and whether to carry out cyberespionage for Chinese companies.  

Later this year we will be joined by Becky Richards of the NSA Privacy office.   

 

We remind everyone that the Podcast welcomes feedback, either by email (CyberlawPodcast@steptoe.com) or voicemail (+1 202 862 5785).

Direct download: Podcast_48.mp3
Category:general -- posted at: 4:43pm EST

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