Steptoe Cyberlaw Podcast

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

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