This episode features a much deeper, and more diverse, examination of the Fifth Circuit decision upholding Texas’s social media law. We devote the last half of the episode to a structured dialogue about the opinion between Adam Candeub and Alan Rozenshtein. Both have written about it already, Alan critically and Adam supportively. I lead off, arguing that, contrary to legal Twitter’s dismissive reaction, the opinion is a brilliant and effective piece of Supreme Court advocacy. Alan thinks that is exactly the problem; he objects to the opinion’s grating self-certainty and refusal to acknowledge the less convenient parts of past case law. Adam is closer to my view. We all seem to agree that the opinion succeeds as an audition for Judge Andrew Oldham to become Justice Oldham in the DeSantis Administration.  

We walk through the opinion and what its critics don’t like, touching on the competing free expression interests of social media users and of the platforms themselves, whether there’s any basis for an injunction today, given the relative weakness of the overbreadth argument and the fundamental disagreement over whether “exercising editorial discretion” is a fundamental right under the first amendment or just an artifact of older technologies. Most intriguing, we find unexpected consensus that Judge Oldham’s (and Clarence Thomas’s) common carrier argument may turn out to be the most powerful point in the opinion and when the case reaches the Court.

In the news roundup, we focus on the Congressional sprint to pass additional legislation before the end of the Congress. Michael Ellis explains the debate between the Cyberspace Solarium Commission alumni and business lobbyists over enacting a statutory set of obligations for systemically critical infrastructure companies. Adam outlines a strange-bedfellows bill that has united Sens. Amy Klobuchar (D-Minn.) and Ted Cruz (R-Texas) in an effort to give small media companies and broadcasters an antitrust immunity to bargain with the big social media platforms over the use of their content. Adam is a skeptic, Alan less so.

The Pentagon, reliably braver when facing bullets than a bad Washington Post story, is performing to type in the flap over fake social media accounts. Michael tells us that the accounts pushed pro-U.S. stories but met with little success before Meta and Twitter caught on and kicked them off their platforms. Now the Department of Defense is conducting a broad review of military information operations. I predict fewer such efforts and don’t mourn their loss.

Adam and I touch on a decision of Meta’s Oversight Board criticizing Facebook’s automated image takedowns. I offer a new touchstone for understanding content regulation at the Big Platforms: They just don’t care, so they’ve turned to whole project over to second-rate AI and second-rate employees.

Michael walks us through the Department of the Treasury’s new flexibility on sending communications software and services to Iran. 

And, in quick hits, I note that:

• The Justice Department’s China Initiative continues to suffer from pushback. 
• We should all expect bad things from the emergence of  violence as a service

Russian botmasters have suddenly discovered that extradition to the U.S. may be better than going home and facing mobilization.

The big news of the week was a Fifth Circuit decision upholding Texas social media regulation law. It was poorly received by the usual supporters of social media censorship but I found it both remarkably well written and surprisingly persuasive. That does not mean it will survive the almost inevitable Supreme Court review but Judge AndyOldham wrote an opinion that could be a model for a Supreme Court decision upholding Texas law. 

The big hacking story of the week was a brutal takedown of Uber, probably by the dreaded Advanced Persistent Teenager. Dave Aitel explains what happened and why no other large corporation should feel smug or certain that it cannot happen to them. Nick Weaver piles on.

Maury Shenk explains the recent European court decision upholding sanctions on Google for its restriction of Android phone implementations.

Dave points to some of the less well publicized aspects of the Twitter whistleblower’s testimony before Congress. We agree on the bottom line—that Twitter is utterly incapable of protecting either U.S. national security or even the security of its users’ messages. If there were any doubt about that, it would be laid to rest by Twitter’s dependence on Chinese government advertising revenue.

Maury and Nick tutor me on The Merge, which moves Ethereum from “proof of work‘ to “proof of stake,” massively reducing the climate footprint of the cryptocurrency. They are both surprisingly upbeat about it.

Maury also lays out a new European proposal for regulating the internet of things—and, I point out—for massively increasing the cost of all those things.

China is getting into the attribution game. It has issued a report blaming the National Security Agency for intruding on Chinese educational institution networks. Dave is not impressed.

The Department of Homeland security, in breaking news from 2003, has been keeping the contents of phones it seizes on the border. Dave predicts that the Department of Homeland Security will have to further pull back on its current practices. I’m less sure.

Now that China is regulating vulnerability disclosures, are Chinese companies reluctant to disclose vulnerabilities outside China? The Atlantic Council has a report on the subject, but Dave thinks the results are ambiguous at best.

In quick hits:

• The Senate has confirmed Nate Fick as the first U.S. cyber ambassador
• I offer data confirming my cynical view that Apple is not so much concerned about your privacy as it is eager to take over the role of Google and Facebook in the advertising market
• Nick lays out the latest Treasury Department guidance on sanctions and tornado cash
• Maury explains how the Indian government persuaded 50 million Indians to geotag their homes

And I explain why it is in fact possible that the FBI and Silicon Valley are working together to identify conservatives for potential criminal investigation.

This is our return-from-hiatus episode. Jordan Schneider kicks things off by recapping passage of a major U.S. semiconductor-building subsidy bill, while new contributor Brian Fleming talks with Nick Weaver about new regulatory investment restrictions and new export controls on (artificial Intelligence (AI) chips going to China. Jordan also covers a big corruption scandal arising from China’s big chip-building subsidy program, leading me to wonder when we’ll have our version.

Brian and Nick cover the month’s biggest cryptocurrency policy story, the imposition of OFAC sanctions on Tornado Cash. They agree that, while the outer limits of sanctions aren’t entirely clear, they are likely to show that sometimes the U.S. Code actually does trump the digital version. Nick points listeners to his bracing essay, OFAC Around and Find Out.

Paul Rosenzweig reprises his role as the voice of reason in the debate over location tracking and Dobbs. (Literally. Paul and I did an hour-long panel on the topic last week. It’s available here.) I reprise my role as Chief Privacy Skeptic, calling the Dobb/location fuss an overrated tempest in a teapot.

Brian takes on one aspect of the Mudge whistleblower complaint about Twitter security: Twitter’s poor record at keeping foreign spies from infiltrating its workforce and getting unaudited access to its customer records. In a coincidence, he notes, a former Twitter employee was just convicted of “spying lite”, proves it’s as good at national security as it is at content moderation.

Meanwhile, returning to U.S.-China economic relations, Jordan notes the survival of high-level government concerns about TikTok. I note that, since these concerns first surfaced in the Trump era, TikTok’s lobbying efforts have only grown more sophisticated. Speaking of which, Klon Kitchen has done a good job of highlighting DJI’s increasingly sophisticated lobbying in Washington D.C.

The Cloudflare decision to deplatform Kiwi Farms kicks off a donnybrook, with Paul and Nick on one side and me on the other. It’s a classic Cyberlaw Podcast debate. 

In quick hits and updates:

• Nick and I cover the sad story of the Dad who photographed his baby’s private parts at a doctor’s request and, thanks to Google’s lack of human appellate review, lost his email, his phone number, and all of the accounts that used the phone for 2FA. 
• Paul brings us up to speed on the U.S.-EU data fight: and teases tomorrow’s webinar on the topic.
• Nick explains the big changes likely to come to the pornography world because of a lawsuit against Visa. And why Twitter narrowly averted its own child sex scandal. 
• I note that Google’s bias against GOP fundraising emails has led to an unlikely result: less spam filtering for all such emails. 

And, after waiting too long, Brian Krebs retracts the post about a Ubiquity “breach” that led the company to sue him.