The Cyberlaw Podcast

I talk about the photographs of Congresswoman Katie Hill and whether the rush to portray her as a victim of revenge porn raises questions about revenge porn laws themselves. Paul Rosenzweig, emboldened by twin tweets – from President Trump calling Never-Trumpers like him “human scum” and from Mark Hamill welcoming him to the Rebel Scum Alliance – takes issue with me.

In a more serious vein, Brian Egan, Paul, and I dig deep into the roots of the battle over how to keep “emerging technology” out of Chinese hands. 

Paul explains a Georgia Supreme Court ruling that cops need a warrant to access automobile data after an accident.

Brian and I talk about why DHS might issue a binding operational directive requiring federal agencies to adopt vulnerability disclosure programs.

Maury Shenk tells us to look for tougher cybersecurity rules in China starting December 1.

Paul unpacks the thinking behind a finding of bias in a widely used algorithm found in a healthcare system.

Maury tells us that “going dark is not going dark.” India’s Supreme Court is consolidating the legal fights over WhatsApp’s end-to-end encryption. In Afghanistan, meanwhile, the New York Times says that WhatsApp has become a key tool for communication by the government

I note a well-written study that contradicts the media narrative that YouTube’s recommendation engine is what’s radicalizing Americans. According to the authors, the problem isn’t YouTube’s recommendations but an audience that is looking for the kinds of alternative content that conservatives (not to mention the Alt-Right and the Alt-Lite) are offering.

In shorter takes, Paul and I cover Microsoft beating AWS for an enormous Pentagon cloud contract, and Brian takes on the question of lies in political ads on Facebook. I ask whether we would be wise to follow Russia’s example and disconnect from the Internet from time to time. 

Finally, Maury and I explore the challenge that TikTok poses not just to the US government but also to the Chinese government. Short take: TikTok can get away with more pro-Hong-Kong-protest speech in the US than the NBA can. 

Download the 284th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

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

Direct download: TheCyberlawPodcast-284.mp3
Category:general -- posted at: 3:30pm EST

Our interview is with Alex Joel, former Chief of the Office of Civil Liberties, Privacy, and Transparency at the Office of the Director of National Intelligence. Alex is now at the American University law school’s Tech, Law, and Security Program. We share stories about the difficulties of government startups and how the ODNI carved out a role for itself in the Intelligence Community (hint: It involved good lawyering). We dive pretty deep on recent FISA court opinions and the changes they forced in FBI procedures. In the course of that discussion, I realize that every “reform” of intelligence dreamed up by Congress in the last decade has turned out to be a self-licking compliance trap, and I take back some of my praise for the DNI’s lawyering.

In the News Roundup, we’re inundated by serious new reports on cyberattacks. Dave Aitel admits that the hacking group he envies most is Turla, which was recently discovered to have totally pwned and stolen the entire attack infrastructure of an Iranian government team. Dave notes that Avast has succumbed to a second, far-reaching intrusion into its network, reminiscent of the last attack, which led to the company sending out a compromised CCleaner application: We may never know whether Avast got the intruder out, Dave suggests, but his hat is off to the company’s PR team. In still more pwnage news, Dave praises two new detailed reports from security companies: FireEye’s report on APT41’s combination of espionage and cybercrime and Crowdstrike’s report on amazingly successful Chinese efforts to steal aircraft intellectual property. And one more: Cyber Command has leaked the bare minimum of information designed to show that Iran’s strike against Saudi oil facilities did not go unpunished. Dave and I take our hats off to Iran’s PR team, which responded to the vague leak by claiming that Cyber Command “must have dreamt it.”

In other news, Gus Hurwitz breaks down a recent Ninth Circuit decision construing the Section 230 immunity for tools that filter content on the Internet. Remarkably, two judges thought that the immunity for preventing access to “objectionable” content would allow a company to cut off consumers’ access to its competitor’s products. Luckily, the two judges were a district court judge and the Ninth Circuit dissenter. But the close call shows how broadly the “objectionable” immunity sweeps. Which raises the question whether our trade agreements should broaden the immunity and turn it into international law that can’t be amended easily, or at all. That was a point of rare bipartisan agreement at a recent House hearing. But there’s no sign yet that Congress is going to reject the trade deals that do this. Gus and I also touch on the latest flaps over social media content monitoring. 

Dan Podair explains what’s good and what’s missing from the California Attorney General’s rules implementing California’s new, sweeping privacy act.

Poor Equifax: Just when they were hoping the worst had passed, the plaintiff’s bar doxxed even more embarrassing security failings. Dave offers this cold comfort: All the mistakes that were offered to show that Equifax security was bad could be found in pretty much any network in the country. More cold than comfort, Dave!

And, finally, we close with This Week in Puerile Jokes: All inspired, of course, by the UK Government’s decision to drop its plan to require ID to watch sex videos online.

Download the 283rd Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! 

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

Direct download: TheCyberlawPodcast-283_1.mp3
Category:general -- posted at: 10:37am EST

Our interview is with Sultan Meghji, CEO of Neocova. We cover the large Chinese investment in quantum technology and what it means for the United States. It’s possible that Chinese physicists are even better than American physicists at extracting funding from their government. Indeed, it looks as though some quantum tech, such as the use of entangled particles to identify eavesdropping, may turn out to have dubious military value. But not all. Sultan thinks the threat of special purpose quantum computing to break encryption poses a real, near-term threat to U.S. financial institutions’ security.

In the News Roundup, we cover the new California Consumer Privacy Act regulations, which devote a surprising amount of their 24 pages to fixing problems caused by the Act’s feel-good promise that consumers can access and delete the information companies have on them. Speaking of feel-good laws that are full of liability land mines for companies, the Supreme Court has let stand a Ninth Circuit ruling that allows blind people to sue under the Americans with Disabilities Act if websites don’t accommodate their needs. Nick Weaver and I explore the risks of making law by retroactively imposing liability.

Weirdly for a populist administration that says it hates the big social platforms for restricting speech, the Trump trade negotiators are actually expanding Section 230 immunities for Silicon Valley that both left and right have begun to question. The expansion is buried in hard-to-amend and even-harder-to-repeal trade agreements. By way of explanation, I explain the Realpolitik of trade deals. As if to prove my point, the U.S. and Japan have signed a Digital Trade Agreement that has much the same provision.

Nick and I muse on the rise of Commerce Department sanctions on individual companies. In a way, such sanctions are a less harsh alternative to OFAC boycotts, but like antibiotics, they either destroy the target or teach it to develop better resistance for the future.

Does TLS stand for “Tough Luck, Sucker?” That’s the message of a new and clever form of malware, softly attributed to the Russian FSB.

Apple, having banned, then unbanned an app that locates police activity in Hong Kong, has re-banned it. Tim Cook’s explanation triggers Nick’s bovine excrement detection system. In a Final Four of Hypocritical Surrender, LeBron and the NBA give ESPN a run for its money. South Park fails to qualify.

Matthew Heiman and I discuss India’s effort to create a national facial recognition system. Naturally BuzzFeed News thinks it’s evil.

Nick and I consider DHS’s request for the power to subpoena ISPs to identify owners of compromised systems. I critique Herb Lin’s suggestion that the ISPs can solve the problem without giving data to DHS.

As Matthew notes, it was just last month that the French government gave the world a stiff-necked little lecture on respecting sovereignty in cyberspace. So why are French police helping reprogram computers in Latin America? Because it’s different when the French are doing it than when it’s done to them, I surmise.

A recent “good guy with a keyboard” story offers me one more chance to ask why someone who’s rescued hundreds from ransomware should have to worry for one minute about liability for the compromised C2 machines he re-compromised in the rescue.

Matthew and I try to simplify a complex ruling from two FISA courts. Among the takeaways: The FBI has been running a lot of searches against 702 databases (3.1 million a year!), and the FISA courts are overusing the Fourth Amendment, which in FISA minimization cases is like trying to do brain surgery with a chainsaw.

Argh! That embarrassing Bloomberg Supermicro story is back. Sort of. Wired has shown that something like this could really be done. Which, Nick points out, we already knew.

I give a shoutout to Jennifer Daskal and Peter Swire for their useful overview of the U.K.-U.S. CLOUD Act, but I wonder if mutual “no targeting of the other country’s nationals” assurances are a scalable solution.

Finally, Matthew reviews the second volume of the Senate Intelligence Committee’s investigation into Russian election interference. The TL;DR? The Russians did what you think they did. Mildly surprising: After starting out just trying to hurt Hillary, by the end the Russians seem to have been trying to help Trump too.

 

Download the 282nd Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

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

Direct download: TheCyberlawPodcast-282.mp3
Category:general -- posted at: 6:20pm EST

Today’s episode opens with a truly disturbing bit of neocolonial judicial lawmaking from the Court of Justice of the European Union. The CJEU ruled that an Austrian court can order Facebook to take down statements about an Austrian politician. Called an “oaf” and a “fascist,” the politician more or less proved the truth of the accusations by suing to keep that and similar statements off Facebook worldwide. Trying to find allies for my proposal to adopt blocking legislation to protect the First Amendment from foreign government interference, I argue that President Trump should support such a law. After all, if he were ever to insult a European politician on Twitter, this ruling could lead to litigation that takes his Twitter account offline. True, he could criticize the judges responsible for the judgment as “French” or “German” without upsetting CNN, but that would be cold comfort. At last, a legislative and international agenda for the Age of Trump!

Nick Weaver returns to give the FDA a better report card than I expected on its approach to cybersecurity. But we agree that the state of medical device and implant security remains parlous.

I try my hand at explaining the D.C. Circuit’s Net Neutrality ruling in Mozilla v. FCC. There are still some rounds to be played, but Net Neutrality, if not dead, may at least be pining for the fjords.

Introducing a new feature: This Week in Elizabeth Warren. She has a plan to revive the Congressional Office of Technology Assessment. Nick likes the idea. I’m less enthusiastic, perhaps because I actually did some work for OTA before it disappeared.

Nick also helps unpack the flap over Google’s proposal to do DNS-over-HTTPS, and why ISPs aren’t happy about it. Bottom line: If you haven’t been paying much attention to the issue, you’ve made the right choice. Just think of how much time you saved by listening to the podcast!

Nick explains how Uzbekistan managed to give cyberattacks an aura, not of menace or invincibility, but of clownish incompetence.

David Kris explains the objections from privacy advocates and NGOs to the French government’s use of nationwide facial recognition for its ID program. I suggest that this may be the dumbest face recognition privacy “scandal” in history.

The cops shut down a Dark Web data center operating from… a NATO bunker? Nick reveals that the main reason to operate from a NATO bunker is, well, marketing.

Apparently channeling Stewart Baker, Attorney General Bill Barr is all-in on discouraging mass-market warrant-proof encryption. Nick thinks he’s picked the wrong fight. And maybe Nick’s right, since the civil-liberties shine on Apple is looking a little scuffed these days.

David tells us that NSA has launched a new defense directorate with Anne Neuberger at its helm. I promise to have her on the podcast early next year.

David talks about the California man charged with delivering classified information to China’s Ministry of State Security.

A Yahoo engineer pleads guilty to hacking emails for pornographic images. I’m surprised this doesn’t happen every month.

And in a sign that Congress can reach bipartisan agreement on bills that do more or less nothing, both the House and the Senate have adopted bills authorizing (but not funding) DHS “cyber hunt” teams to help local governments suffering from cyber ransom and other attacks.

Bringing back an old favorite, I cover the hacking of an electronic billboard to play porn.

 

Download the 281st Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! 

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

Direct download: TheCyberlawPodcast-281.mp3
Category:general -- posted at: 12:53pm EST

In this episode I cross swords with John Samples of the Cato Institute on Silicon Valley’s efforts to disadvantage conservative speech and what to do about it. I accuse him of Panglossian libertarianism; he challenges me to identify any way in which bringing government into the dispute will make things better. I say government is already in it, citing TikTok’s People’s Republic of China-friendly “community standards” and Silicon Valley’s obeisance to European standards on hate speech and terror incitement. Disagreeing on how deep the Valley’s bias runs, we agree to put our money where our mouths are: I bet John $50 that Donald J. Trump will be suspended or banned from Twitter by the end of the year in which he leaves office.

There’s a lot of news in the Roundup. David Kris explains the background of the first CLOUD Act agreement that may be signed this year with the UK.

Nate Jones and I ask, “What is the president’s beef with CrowdStrike, anyway?” And find a certain amount of common ground on the answer.

This Week in Counterattacks in the War on Terror: David and I recount the origins and ironies of Congress’s willingness to end the NSA 215 phone surveillance program. We also take time to critique the New York Times’s wide-eyed hook-line-and-sinker ingestion of an EFF attack on the FBI’s use of National Security Letters.

Edward Snowden’s got a new book out, and the Justice Department wants to make sure he never collects his royalties. Nate explains. I’m just relieved that I will be able to read it without having to shoplift it. And it seems to be an episode for challenges, as I offer Snowden a chance to be interviewed on the podcast—anytime, anywhere, Ed!

Matthew Heiman explains the latest NotPeya travail for FedEx: A shareholder suit alleging that the company failed to disclose how much damage the malware caused to its ongoing business. 

Evan Abrams gives a hint about the contents of Treasury’s 300-page opus incorporating Congress’s overhaul of CFIUS into the CFR.

I credit David for inspiring my piece questioning how long end-to-end commercial encryption is going to last, and we note that even the New York Times seems to be questioning whether Silicon Valley’s latest enthusiasm is actually good for the world.

Matthew tells us that China may have a new tool in the trade war—or at least to keep companies toeing the party line: The government is assigning social credit scores to businesses. 

Finally, Matthew outlines France’s OG take on international law and cyber conflict. France opens up some distance between its views and those of the United States, but everyone will get a chance to talk at even greater length on the topic, as the U.N. gears up two different bodies to engage in yet another round of cyber-norm-building.

 

Download the 280th Episode (mp3). 

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

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

Direct download: TheCyberlawPodcast-280.mp3
Category:general -- posted at: 11:44am EST

In our 279th episode of The Cyberlaw Podcast, the Blockchain Group takes over the podcast. Host Alan Cohn is joined by Gary Goldsholle, Will Turner and Evan Abrams to discuss:

  • The SEC has issued its second token-related no-action letter to Pocketful of Quarters, Inc., giving more guidance and opening a number of issues.
  • The SEC has brought a double-headed complaint against ICOBOX, an entity that both conducted an initial coin offering (ICO) and facilitated ICOs for others.
  • The US has brought the Financial Action Task Force along on its travel rule adventure.
  • The SEC and FINRA have custody guidance.
  • FinCEN has guidance on convertible virtual currencies.
  • The SEC has brought a complaint against FantasyCoin for what amounts to sheer, brazen fraud.
  • The SEC settlement in SimplyVital Health, with Steptoe as counsel, shows the SEC’s willingness to work with companies that voluntarily remediate errors.

Download the 279th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

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

 

Direct download: TheCyberlawPodcast-279_1.mp3
Category:general -- posted at: 6:46pm EST

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