The Cyberlaw Podcast (general)

This week’s interview is a deep (and long—over an hour) dive into new investment review regulations for the Committee on Foreign Investment in the United States (CFIUS). It’s excerpted from an ABA panel discussion on the topic, featuring: Tom Feddo, who currently oversees CFIUS; Aimen Mir, who used to oversee CFIUS; Sanchi Jayaram, who is in charge of the Justice Department’s CFIUS and Team Telecom work; David Fagan, a noted CFIUS practitioner; and me as moderator. It turns out the new CFIUS law may be the most innovative—and sweeping—piece of legislation on national security in years.  

In the news, it’s time for a Cyberlaw Podcast victory lap, as our bold election-eve prediction that foreign governments would not successfully hack the election seems to hold up well, despite laughable Internet Research Agency claims in a new meta-trolling propaganda campaign.

I note that challenges to FISA are increasing as it starts to play a role in more criminal cases. I ask David Kris whether Bob Mueller took unwise risks with intelligence equities when he charged a Russian company with criminal election trolling, since that company is now seeking discovery of intelligence intercepts.

Dr. Megan Reiss notes that China is making what might be called great strides in “gait recognition” software to supplement face recognition, taking what looks like a global lead in the technology. This reminds me that fifteen years ago, when DARPA was researching gait recognition for terrorist identification, the left/lib NGOs got Congress to kill funding by lampooning what they called “a Monty Python-esque ‘Ministry of Silly Walks.’” Not so funny now, is it guys? Especially in light of evidence that China is exporting its cyber surveillance tech to Africa.

How does China do it? According to the Australian Strategic Policy Institute, with plenty of help from the universities of the English-speaking world. Apparently the People’s Liberation Army has been sending its scientists to the West under light cover to study cutting edge defense tech.

Nate Jones and I examine the latest chapters in the now-encyclopedic tale of Silicon Valley v. Conservatives. We take a look at a Trump immigration campaign ad that Facebook and broadcast media (Fox included) refused to run. Gab is back, but just by the skin of its teeth. Meanwhile, the pitchforks and torches are being mustered for LinkedIn, which apparently hasn’t been sufficiently cowed by lefty censors. And Facebook’s effort to suppress Alex Jones’s InfoWars site is running into trouble.

Megan and I talk about the prospect that Iran is getting ready to launch cyberattacks on the US and Israel.

Nate covers the collapse of IronChat security as Dutch police managed to decrypt 258,000 messages in the app. Maybe spurred by my taunting, Edward Snowden denies that he ever endorsed the product, notwithstanding the claim on IronChat’s website. My tweet on same: “Hey, @Snowden, IronChat sold secure phones at exorbitant prices because of your endorsement.”

Pakistan says “almost all” its banks have been hacked.  Wouldn’t it be ironic if North Korea was buying nuclear and missile technology from Pakistan with money stolen from Pakistani banks? 

Download the 239th Episode (mp3).

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

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee 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-239.mp3
Category:general -- posted at: 4:56pm EST

This episode puts our experts on the spot with an election-eve question: Will foreign governments attack US electoral rolls or vote-counting machinery in 2018? Remarkably, no one on our panel (Matthew Heiman, Nick Weaver, David Kris, and I) thinks they will. So if you want cybersecurity news, you can stop listening to election coverage and tune in to Episode 238 of The Cyberlaw Podcast.

Our interview features Steve Rice (Deputy CIO for DHS) and Max Everett (CIO for the Department of Energy) and was originally taped at a session of the Homeland Security Week conference.

In the news, Nick evaluates the report that China hijacked the Border Gateway Protocol; he thinks we need more data. David agrees with me that one way to get the data would be a Justice Department subpoena.

Matthew Heiman explains why SCOTUS is skeptical of Google’s cy pres settlement that treated 129 million class members like bystanders at someone else’s party – and why that skepticism may not appear in US Reports any time soon.

Nick and David lay out the painful story of how failures in CIA communications with their assets may have severely compromised HUMINT operations in Iran and China.

Matthew and I talk about the string of right-wing killers in the past few weeks and the tech implications, including the defenestration of Gab and a lot of throat-clearing about amending Section 230 of the Communications Decency Act.

Matthew also explains, then casts doubt on, a Florida Appeals Court decision that rejects the “foregone conclusion” doctrine for compelled passcode disclosure.

After all the Internet-enabled vibrator stories we’ve covered on the podcast, I think we’re obliged by gender equity to cover this effort to use artificial intelligence to improve male sex toys. For those who may face confirmation before the Senate Judiciary Committee any time in the next decade, Nick explains that Markov chain techniques have nothing to do with the Devil’s Triangle.

More hostilities in the US-China Cool War: DOJ has indicted a Chinese-state owned company as well as UMC and three individuals for stealing trade secrets from US companies; and in a coordinated move, the Department of Commerce has placed limits on US businesses interacting with the Chinese company. I wonder whether the Cool War between China and the US is increasingly forcing big foreign tech companies to choose between the two as they develop new technology.

 

 

Download the 238th Episode (mp3).

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

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee 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-238.mp3
Category:general -- posted at: 2:07pm EST

The theme of this week’s podcast seems to be the remarkable reach of American soft power: Really, we elect Donald Trump, and suddenly everybody’s trolling. The Justice Department criminally charges a Russian troll factory’s accountant, and before David Kris can finish explaining it, she’s on YouTube, trolling the prosecutors with a housewife schtick. She’s not alone. Faced with the news that President Trump is using a commercial iPhone for many of his calls—and, Nate Jones points out, getting tapped by China, Russia, and others as a result—China has a suggestion that scores at the top of the POTUS Troll Scale. Tim Cook goes to Europe to troll Android—and me—with a speech that touches all my buttons: Europhilia, Apple sanctimony in pursuit of profit and blind enthusiasm for privacy regulation. And when the Belgians ask for British help investigating a suspected GCHQ hack of a Belgian ISP, as David and I discuss, the British respond with what can only be described as understated trolling.

This week’s interview is with Dr. Dipayan Ghosh, Pozen Fellow at Harvard’s Shorenstein Center and co-author of a new report, “Digital Deceit II: A Policy Agenda to Fight Disinformation on the Internet.” I find it an interesting mix of good insights and warmed-over Obama-era nostrums (Carly Rae Jepsen makes a brief appearance). Dipayan and I tangle on privacy but struggle toward common ground on the question of limiting the power of the Big Platforms. He’s open-minded and flexible about the details of the proposal, so for fans of civil policy debate (especially those worried about where the platforms’ dominance and ad revenue are taking us), this episode is a keeper.

Why would a Russian technical institute design malware used in an effort to sabotage a major petrochemical plant in Saudi Arabia? Nate Jones lays out the story. Originally suspected of being an Iranian operation, the attack may have originated in Iran, but FireEye persuasively links the underlying (and flawed) malware to Moscow. One possibility is that it’s a Russian false flag job, minus the embarrassing GRU operatives’ Uber receipts. My guess, though, is that the Russian institute is just amortizing malware development costs by selling off exploits developed for the GRU. If so, this may turn out to be another slow motion disaster for the thugs in the Aquarium.

In other news, Yahoo settled a class action over the enormous breach affecting 200 million people and three billion accounts. The price of that settlement? After the lawyers have been paid, the $50 million settlement will work out to about 25 cents per victim. Seems pretty cheap to me.

For a brief moment, reality has descended on the left coast. It looks like California isn’t eager for a judicial ruling on its campaign to nullify federal net neutrality law.

In the UK, Facebook is fined the maximum under pre-GDPR law, for what the privacy agency calls a failure to protect personal data from Cambridge Analytica—but what I suspect is the unspeakable crime of not having prevented the election of Donald Trump. And now that GDPR is in effect, the bien pensants of Europe have served notice; failure to prevent the president’s re-election will cost Silicon Valley billions.

Finally, what goes around comes around for the Uber “bounty” hackers. David and I think that pretty much answers the question whether they were just confused bounty hunters or extortionists with a clever line of patter.

 

Download the 237th Episode (mp3).

 

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

 

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee 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-237.mp3
Category:general -- posted at: 5:02pm EST

In this episode’s interview we ask whether the midterm elections are likely to suffer as much foreign hacking and interference as we saw in 2016. The answer, from Christopher Krebs, Under Secretary for National Protection and Programs Directorate (soon to be the Cybersecurity and Infrastructure Security Agency), is surprisingly comforting, though hardly guaranteed. Briefly, it’s beginning to look as though the Russians (and maybe the Iranians) are holding their fire for the main event in 2020.

In the News Roundup, Maury Shenk highlights the role of Twitter, trolls and Saudi royals in the Khashoggi killing. He also explains the apparently ridiculous result in the EU Android competition matter. It may be a case of Google giving the EU what it asked for – good and hard.

Terry Albury certainly got it good and hard from a federal judge. He was sentenced to four years in prison for leaking classified documents to The Intercept. Jamil Jaffer explains why Albury’s claim of being a whistleblower didn’t win him much relief. I suggest that the only people who read Intercept articles to the end are federal agents trying to find clues to the leakers’ identities; whatever they’re doing, it’s working.

Maury and I marvel over the flood of venture capital money into China—and a potential ebb tide for Chinese money in Silicon Valley.

Jamil explains the latest SEC report flagging the cost of email fraud; nine firms lost $100 million to cyberfraud. And to add insult to injury, the SEC hints broadly that future victims may be tagged for violating SEC accounting standards, which should be sufficient to prevent such fraud.

I point to the ABA’s recent ethics opinion mandating breach disclosure to clients – and quite a bit more. Maury instructs me on the question of whether putting names on doorbells violates GDPR. Vienna says yes; Germany, no. Maury is sure the Germans have this right.

Finally, I update listeners on the Equifax data breach engineer who figured out that his company must have been breached and traded on his suspicion. In an act of relative mercy for the clueless engineer, he was fined and sentenced to eight months of home confinement.

 

Download the 236th Episode (mp3).

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

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee 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-236.mp3
Category:general -- posted at: 10:09am EST

Today we interview Doug, the chief legal officer of GCHQ, the British equivalent of NSA. It’s the first time we’ve interviewed someone whose full identify is classified. Out of millions of possible pseudonyms, he’s sticking with “Doug.” Listen in as he explains why. More seriously, Doug covers the now-considerable oversight regime that governs GCHQ’s intercepts and other intelligence collection, Britain’s view of how the law of war applies in cyberspace, the prospects for UN talks on that topic, the value of attribution, and whether a national security agency should be responsible for civilian cybersecurity (the UK says yes, the U.S. says no).

In the news, Nick Weaver and Matthew Heiman comment on the ongoing controversy surrounding Bloomberg Businessweek’s Chinese supply-chain-attack story.

Matthew tells us that Treasury has announced its CFIUS pilot program, which will require the filing of notices for Chinese acquisitions in 27 critical industries. I argue that a predisposed bureaucracy has made President Trump a transformational president in terms of relations with China.

Speaking of bureaucratic predispositions, DOJ is showing enthusiasm in carrying out its predisposition to haul Chinese spies into court. What’s remarkable is that it was able to do that from across the Atlantic. While not a cyberspy, the recent arrest and extradition of an accused Chinese economic spy is easy to read as DOJ's answer to those who say indictments of government spies are a sign of weakness.

Everybody’s going to have to choose sides as Trump and Xi continue on their collision course. Except Google. At least according to Google, which bailed out of a Pentagon program because it didn’t meet Google’s values. Oh, and because Google had no chance of winning the contract. Talk about virtue signaling on the cheap!

The EU’s virtue signaling isn’t nearly as cheap, at least for Google, which is now appealing a massive EU competition fine. I can’t help wondering who the hell uses Google Shopping searches; the EU fine must be $1 billion for every biased search.

Nick reports on two troubling government reports. He believes one — the cybersecurity of DOD weapons systems really is a problem. He’s less impressed by White House concerns about the health of the defense industrial base, having recently done some “Buy America” electronics procurement himself.

Finally, Vietnam will force local data storage over Silicon Valley’s protests. Nick, Matthew and I explore the continuing delusion of U.S. foreign policymakers in insisting that the Internet must be borderless and open and free. 

Download the 235th Episode (mp3).

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

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee 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-235.mp3
Category:general -- posted at: 10:01am EST

Bloomberg Businessweek’s claim that the Chinese bugged Supermicro motherboards leads off our News Roundup. The story is controversial not because it couldn’t happen and not because the Chinese wouldn’t do it but because the story has been denied by practically everyone close to the controversy, including DHS. Bloomberg Businessweek stands by the story. Maybe it’s time for the law, in the form of a libel action, to ride to the rescue.

Congress, astonishingly, has been doing things other than watch the Kavanaugh hearings. It produced a conferenced version of the FAA authorization including authority for DHS and DOJ to intercept drone communications and seize drones without notice or a warrant. This effort to get in front of dangerous technology yields the usual whines from the usual Luddite “technology advocates.” Meantime, Congress has also adopted a bill to change the name of DHS’s cyber and infrastructure security agency to, well, the Cybersecurity and Infrastructure Security Agency

ZTE’s troubles continue, as a federal judge slammed the company for violating the terms of its probation. The judge extended ZTE’s probationary term and the term of its monitor – meaning the company now has two US monitors watching as it tries to rebuild its business.

The Trump Administration is following in the Obama Administration’s footsteps, Gus Hurwitz reports, trying to build consensus around norms for cyber conflict. I remain dubious, but at least this effort is limited to countries not actively engaged in cyber hostilities with the United States.  

California has its own air pollution standards; why not its own net neutrality law? Probably because the FCC under Ajit Pai is not the EPA. Gus and I discuss whether any part of California’s law can withstand preemption.

The hits just keep on coming for the GRU, a formerly vaunted Russian intelligence service, which now can’t even keep secret the names of its most secret agents. Bellingcat, a private website, totally pantses the agency, outing not just its nerve agent operatives but 300 others for good measure.  Piling on, the Justice Department indicts another batch of GRU operatives for hacking sports anti-doping authorities. Even Germany musters the courage to join the UK in fingering Russia for its cyberattacks while the mighty Dutch counter-hacking team joins in the sack dance.

Is the Turing test easier if you only have to convince Californians that you’re human? That may be the theory behind California’s SB 1001, making it unlawful for a bot to deceive a Californian about its botitude “in order to incentivize a purchase or sale of goods or services in a commercial transaction or to influence a vote in an election.”

More bad news for Justice in Silicon Valley, according to leaks from a court case in which the Department is rumored to have sought a court order forcing Facebook to cooperate in a wiretap of MS-13 members.  

Finally, Dr. Megan Reiss reports, North Korea is apparently getting rich robbing banks. Surprisingly, though, it seems not to be robbing American banks. Yet. 

 

Download the 234th Episode (mp3).

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

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee 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-234.mp3
Category:general -- posted at: 5:31pm EST

In this news-only episode, Nick Weaver and I muse over the outing of a GRU colonel for the nerve agent killings in the United Kingdom. I ask the question that is surely being debated inside MI6 today: Now that he’s been identified, should British intelligence make it their business to execute Col. Chepiga?

On a lighter note, Uber is paying $148 million to state AGs for a data breach that apparently had no consequences and might not even have been a breach.

About a year too late for Congressional action, a consensus of sorts is emerging among Republicans that Silicon Valley needs broad privacy regulation. The Trump Administration is asking for comment on data privacy principles. And tech giants are pushing lawmakers for federal privacy rules. But the catalyst is an increasing need for federal preemption in the face of California’s new law, and the Dems who are expected to take the House will be hard to sell on preemption. So despite the emerging consensus, a log jam that lasts years could still be in our future.

The sentencing of an NSA employee for taking sensitive tools home – and getting them compromised by Kaspersky – leaves Nick with plenty of additional questions about the source of the tools compromised by Russian proxies in recent years.

Evan Abrams gives us a summary of the NY AG’s report on virtual markets and cryptocurrency. Bottom line: New York is likely to pursue regulation with vigor.

Meanwhile, West Virginia embraces a mobile voting app for the 2018 election. Remarkably, despite the deployment of blockchain buzzwords, none of us thinks the system is secure.

And in quick hits:

  • The GRU is taking the “P” in APT way too seriously.
  • A content moderator has sued Facebook, claiming that her job gave her PTSD.
  • India’s Supreme Court has upheld, with limits, the government’s massive Aadhaar digital ID program.
  • Facebook suffered a breach affecting 50 million user accounts and probably 40 million “log on with Facebook” accounts. We’re getting these facts piecemeal thanks to the EU’s dumb 72-hour deadline for reporting breaches under GDPR.
  • President Trump says China is interfering in the 2018 elections. But unlike Russia in 2016, all of China’s fake news is on actual newsprint.
  • Finally, a quick report roundup:

Download the 233rd Episode (mp3).

 

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

 

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee 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-233.mp3
Category:general -- posted at: 5:15pm EST

Our guest is Peter W. Singer, co-author with Emerson T. Brooking of LikeWar: The Weaponization of Social Media. Peter’s book is a fine history of the way the Internet went wrong in the Age of Social Media. He thinks we’re losing the Like Wars, and I tend to agree. It’s a deep conversation that turns contentious when we come to his prescriptions, which I see as reinstating the lefty elite that ran journalism for decades, this time empowered by even less self-doubt – and AI that can reproduce its prejudices at scale and without transparency.

In the News Roundup, Dr. Megan Reiss and Peter Singer join me in commenting on the White House and DOD cyber strategies. Bottom line: better than last time, plenty more room to improve.

“God Bless the Dutch.” They’ve pwned Putin’s GRU again. In a truly multinational caper, as Nick Weaver explains, Dutch intel caught Russian spies planning cyberattacks on the Swiss institute investigating Russia’s nerve agent attack in Britain.

The downside of sanctions. China has joined with Russia in protesting sanctions on Russian weapons sellers that spilled over to the Chinese military. Maury Shenk and I worry about the risk that overuse of sanctions will create a powerful alliance of countries determined to neutralize the sanctions weapon.

Is it reckless to speculate that the gas fires in Massachusetts could be a cyberattack? I think it’s a fair question, to which we may not have the answer. Nick Weaver (mostly) persuades me I’m wrong.

Amazon finds itself in the sights of the European Commission over its dual role in hosting third party sellers. Maury explains why.

Putin’s enemies list, or a part of it, is disclosed when Google warns Senate staffers that their Gmail has been attacked. Maury and I congratulate Steptoe alum Robert Zarate for making the cut. Looks like the Mirai botnet kids will be sentenced to help the FBI on cyber investigations. And Megan sees the hand of Robert Zarate – now officially the Zelig of cyber conflict – in Marco Rubio’s letter to Apple asking why it was so slow to stop an app from sending American user data to China.

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

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee 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-232.mp3
Category:general -- posted at: 10:33am EST

Our interview this week is with Hon. Michael Chertoff, my former boss at Homeland Security and newly minted author of Exploding Data: Reclaiming Our Cyber Security in the Digital Age. The conversation – and the book – is wide ranging and shows how much his views on privacy, data, and government have evolved in the decade since he left government. He’s a little friendlier to European notions of data protection, a little more cautious about government authority to access data, and even a bit more open to the idea of letting the victims of cyberattacks leave their networks to find their attackers (under government supervision, that is). It’s a thoughtful, practical meditation on where the digital revolution is taking us and how we should try to steer it.

The News Roundup features Paul Rosenzweig, Matthew Heiman, and Gus Hurwitz – whom we congratulate for his move to tenured status at Nebraska. We all marvel at Europe’s misplaced enthusiasm for regulating the Internet. This fall the Europeans returned from their August vacation to embrace a boatload of gobsmackingly unrealistic tech mandates – so unrealistic that you might almost think they’re designed to allow the endless imposition of crippling fines on Silicon Valley.

In the last week or so, European institutions have pretty much shot the regulatory moon: Matthew sets out the European Parliament’s expensive and wrongheaded copyright rules. Paul covers the European Commission’s proposal that social media take down all terror-inciting speech within one hour, on pain of massive fines. Gus discusses the European Court of Human Rights’ ruling that GCHQ’s bulk data collection practices fail to meet human rights standards, though they can be fixed without dumping bulk collection. And I marvel that France is urging the European Court of Justice, which needs little encouragement to indulge its anti-Americanism, to impose Europe’s “right to be forgotten” censorship regime on Americans and on other users around the world. That’s a position so extreme that it was even opposed by the European Commission. Gus explains.

In other news, Paul outlines the National Academy of Sciences’ report, offering a sensible set of security measures for American voting systems. We all unpack the new California IoT security bill, which is now on the governor’s desk. I predict that, flawed though it is, ten more state legislatures could adopt the bill in the next year.

This Week in Social Media Bias: Paul tells us that Twitter has found a deep well of hate speech in … the United States Code. I tell the ambiguous story of offering up my Facebook account to verify claims of social media censorship.  And Gus reports that the Left has discovered a problem with fact checking for social media posts; to their surprise, it doesn’t always work in their favor.

In closing, we quickly touch on the meltdown of the world’s biggest identity database and The Intercept’s endlessly tendentious article trying to make a scandal out of IBM’s face recognition software, which can apparently search footage by skin color.

Download the 231st Episode (mp3).

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

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee 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-231.mp3
Category:general -- posted at: 5:07pm EST

We are fully back from our August hiatus, and leading off a series of great interviews, I talk with Bruce Schneier about his new book, Click Here to Kill Everybody: Security and Survival in a Hyper-Connected World. Bruce is an internationally renowned technologist, privacy and security commentator, and someone I respect a lot more than I agree with. But his latest book opens new common ground between us, and we both foresee a darker future for a world that has digitally connected things that can kill people without figuring out a way to secure them. Breaking with Silicon Valley consensus, we see security regulation in the Valley’s future, despite all the well-known downsides that regulation will bring. We also find plenty of room for disagreement on topics like encryption policy and attribution.

In the News Roundup, I ask Jamil Jaffer, Nate Jones, and David Kris for the stories that people who took August off should go back and read. Jamil nominates the fascinating-as-a-slow-motion-car-wreck story of Maersk’s losing battle with NotPetya. We speculate on whether the Russians caused $10 billion in worldwide damage by mistake or on purpose, and whether anyone other than a US government lawyer would call that indiscriminate attack a war crime.

David nominates the 179-page complaint against a North Korean hacker behind most of that country’s famous hacks. And, as a palate cleanser, the remarkable, score-settling, where-are-they-now story of the companies that challenged the FBI’s attribution of the Sony hack to North Korea.

Finally, I suggest spending some time with what might be called DCLeaks for good guys: Intrusion Truth, a website devoted to outing personal details about the government hackers who have been attacking Western companies. It (and Crowdstrike) provides an old-fashioned pantsing of China’s Ministry of State Security (MSS) – the sort of embarrassing doxing that allowed the MSS to take over much of China’s cyberespionage portfolio from the hapless People’s Liberation Army after it was outed several years ago.

In other news, a Five Country Ministerial (homeland security and immigration ministers from the US, UK, Australia, Canada, and New Zealand) issued a statement on encryption that seemed to threaten action, saying that if tech companies don’t address the ministers’ concerns, “we may pursue technological, enforcement, legislative or other measures to achieve lawful access solutions.” While this group isn’t really the “Five Eyes” of SIGINT fame, that’s not very comforting for Big Tech, since the statement suggests a wider coalition and another step forward in the effort to bring Big Tech to heel on the issue.

Download the 230th Episode (mp3).

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

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee 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-230.mp3
Category:general -- posted at: 12:05pm EST

On September 4th, Alan Cohn hosted the 229th episode of The Cyberlaw Podcast. We took a deep dive into all things blockchain and cryptocurrency discussing recent regulatory developments and best practices for users of exchanges.

Our episode begins by looking at the landmark decision coming out of the New York Eastern District Court in favor of the Commodity Futures Trading Commission (CFTC). Charles Mills provides an overview of the recent New York federal court decision and CFTC victory against Cabbage Tech, Corp. d/b/a Coin Drop Markets and Patrick K. McDonnell of Staten Island, New York, ordering McDonnell to pay over $1.1 million in civil monetary penalties and restitution in connection with a lawsuit brought by the CFTC alleging fraud in connection with virtual currencies, including Bitcoin and Litecoin. In addition, Charles presents a more general overview of CFTC regulations.

Claire Blakey presents a timeline of the US Securities and Exchange Commission’s (SEC) recent actions regarding ETFs. On August 23, 2018, SEC announced that it would reconsider a decision to reject nine Bitcoin-based exchange traded funds. Earlier this month, SEC staff delayed a decision on the SolidX proposal, stating it needs more time to consider the proposal – the deadline for this decision is September 30, 2018. Claire also discusses CBOE’s filing with SEC for a bitcoin ETF.

Evan Abrams highlights the four takeaways from the Department of Treasury’s Financial Enforcement Network (FinCEN) director’s speech on cryptocurrency. On August 9, 2018, FinCEN Director Kenneth Blanco delivered a speech on the agency’s approach to cryptocurrency where he made a few unexpected remarks. Evan states that this speech offered helpful clarifications and insights, but also left a number of important questions unanswered. In addition, Evan discusses the Office of the Comptroller of the Currency’s proposed charter for online lenders and other FinTech companies in the coming months.

Finally, Maury Shenk covers the recent reports about the EU finance ministers’ plan to discuss the possibility of cryptocurrency regulation at a meeting in early September. As part of a leaked confidential note, it is expected that EU ministers will discuss anti-money laundering issues amongst other things. Alan and Maury note that while the EU takes a heavier regulatory approach than the US in this area, the process is slow moving but steadily developing. In addition, Maury discusses the European Blockchain Partnership, describing it as an integrated effort for a great blockchain future.

In our interview, the Steptoe team was joined by Sarah Compani, Legal Counsel at Bitfinex. Bitfinex is a full-featured spot trading platform for major digital assets and cryptocurrencies, including Bitcoin, Ethereum, and many more. Bitfinex offers leveraged margin trading through a peer-to-peer funding market, allowing users to securely trade with up to 3.3-times leverage. Sarah took us through the best security practices for users of exchanges, particularly focusing on security settings that users can customize, such as Google Authenticator 2FA, Universal 2nd Factor (U2F), and IP address whitelisting. Finally, Sarah provides listeners with three takeaways as she responds to Alan’s questions regarding the future of exchanges, the Bitfinex platform, and potential challenges going forward.

Download the 229th Episode (mp3).

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

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee 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-229.mp3
Category:general -- posted at: 12:06pm EST

We’re still on hiatus, but we’re back again this week with another bonus episode. Our next season will feature an interview with Bruce Schneier, cryptography, computer science, and privacy guru, about his latest book, Click Here to Kill Everybody: Security and Survival in a Hyper-connected World. So it only seems appropriate to revisit my May 2015 interview with Bruce about his earlier work, 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.

 

We’ll be back in September with another edition of Blockchain Takes Over the Cyberlaw Podcast, followed by the new interview with Bruce Schneier.

 

Download the Bonus Episode (mp3).

 

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

 

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee 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-65-Rerun.mp3
Category:general -- posted at: 4:07pm EST

We’re officially on hiatus this month, but we just couldn’t stay away that long. If you can’t live without The Cyberlaw Podcast in your life, then you’re in luck. We’re releasing a couple bonus episodes with some of my favorite past interviews.

This week I revisit my April 2015 interview with 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.

We’ll be back in September with another edition of Blockchain Takes Over the Cyberlaw Podcast. I’ll return the following week with an interview with Bruce Schneier, so be sure to tune in.

Download the Bonus Episode (mp3).

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

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee 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-61-Rerun.mp3
Category:general -- posted at: 3:35pm EST

Our guest for the interview is Noah Phillips, recently appointed FTC Commissioner and former colleague of Stewart Baker at Steptoe. Noah fields questions about the European Union, privacy, and LabMD, about whether Silicon Valley suppression of conservative speech should be a competition law issue, about how foreign governments’ abuse of merger approvals can be disciplined, and much more.

The imminent passage of the must-pass National Defense Authorization Act yields a deep dive on the bill. Most important for business lawyers, the bill will include a transformative rewrite of CFIUS’s investment-review procedures and policies.

Gus Hurwitz lays out many of the cyber issues addressed by the NDAA, while Dr. Megan Reiss explains the act’s creation of a “Solarium” commission designed to force serious strategic thinking about cybersecurity and cyberweapons. I offer my contribution to that debate—an effort to think the unthinkable and come up with tougher options for responding to serious cyberattacks. Since we’re trying to think the unthinkable, I argue, we’re really rooting for the itheberg, so I’ve dubbed it the Itheberg Project. (There must be a Robert Frost reference in there somewhere—about the world ending in solarium or in ithe—but I can’t find it.) I do, however, make an unusual double-barreled offer to those who might want to participate in the Itheberg Project.

 

All that pales next to a surprisingly lively discussion of circuits splitting over insurance coverage of cyber-related fraud losses. Gus and Matthew Heiman predict that the Supreme Court (or an insurance contract rewrite) will be necessary to resolve the issue – and both of them think the issue is well worth the Court’s time. No one tell Judge Kavanaugh or he may just decide to stay on the DC Circuit!

In a “lightning” round that the FTC may soon investigate for deceptive labeling:

Download the 228th Episode (mp3).

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

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee 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-228.mp3
Category:general -- posted at: 7:45am EST

In our 227th episode of The Cyberlaw Podcast, Stewart Baker interviews Bobby Chesney (@BobbyChesney), who recently co-authored a paper with Danielle Citron (@DanielleCitron) titled, “Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security.” Stewart and Bobby are joined by Maury Shenk, Nick Weaver (@ncweaver), and Patt Cannaday to discuss:

  • Is the EU’s $5 billion fine on Google a bad idea grounded in anti-Americanism? President Trump seems to think so;
  • The DOJ cyber digital report (PDF) sets sensible new standards for avoiding partisanship while naming foreign states trying to influence US opinion – but if DOJ gives Big Tech special access to intelligence, will Big Tech use the intel in a nonpartisan way?
  • Recent speculative execution attacks on Intel and ARM processors (Spectre et al.);
  • Overdoing it wrong? Senate doesn’t just cave on ZTE penalties for violating export control law – it also caves on US supply chain worries;
  • The FISA document dump on Carter Page – sure, it undercuts Devin Nunes, but what are the ramifications for FISA applications that rely heavily on news media articles?
  • All 50 states have taken federal funds (PDF) to improve election cybersecurity – now it’s up to them to deliver a secure election in November;
  • EU and Japan agree on mutual adequacy findings allowing personal data transfers – but will the findings meet the European Court of Justice’s absurdly solipsistic requirements?

You can also find Bobby Chesney on the National Security Law Podcast(@NSLpodcast), which he co-hosts with Steve Vladeck (@steve_vladeck). If you want to learn more about deep fakes, check out the Heritage Foundation’s recent discussion in which Bobby participated.

Download the 227th Episode (mp3).

As always, The Cyberlaw Podcast is open to feedback. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Remember: If your suggested interviewee 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-227.mp3
Category:general -- posted at: 3:08pm EST

In Episode 226 of the Cyberlaw Podcast, Stewart departs for the wilderness, and the news-roundup team (Brian Egan with Matthew Heiman, Jim Lewis, and Megan Reiss) muddles through without him.

Matthew and Jim discuss Friday’s indictment of 12 Russian GRU personnel by the Department of Justice and Special Counsel Robert Mueller. Matthew explains that, while we shouldn’t expect extradition proceedings to take place any time soon (or ever), the Justice Department has a theory for pursuing these types of indictments in selected cases. Stewart weighs in by Twitter, bemoaning somewhat surprisingly (given the source) that the indictments reflect a poor interagency coordination process and a lack of appreciation for diplomacy. From Jim’s perspective, these indictments are about as good as diplomacy is going to get on this issue…

Matthew walks through the continued bipartisan work in the Senate on the Secure Elections Act, which would facilitate information sharing amongst the states on election threats and take other steps in an attempt to improve election cybersecurity. Matthew explains that federalism may well end up limiting what can be done (or what Congress will agree to do) on this issue.

Megan weighs in on Commerce’s announcement on Friday that it lifted the Denial Order against ZTE after ZTE paid an additional $1.4 billion in penalties and took other steps pursuant to the new settlement agreement reached in June. Megan forecasts continued pressure on ZTE from Capitol Hill, even if the additional penalties against ZTE are generally seen as significant. Jim thinks that the U.S. government’s approach to ZTE is shortsighted and may end up harming national security interests down the road.  

Megan and Jim also discuss the efforts of another Chinese company – the video surveillance camera company Hikvision—to fight back against U.S. government concerns related to espionage. We ask ourselves: Is there anything that a Chinese company can do to rebut US espionage and related concerns? And Jim weighs in on the “state of the state” of the 2015 "no commercial cyberespionage" handshake agreement between the U.S. and China, which the State Department confirms is the rare international deal entered into under President Obama that has not yet been ripped up by President Trump.

Elsewhere, Matthew explains why Twitter follower numbers dropped precipitously last week after Twitter’s latest attempts to clean up suspicious accounts. (Justin Bieber and Katy Perry were hit hard, but Stewart’s account may be down to zero.) Luckily, Jim has some practical tips for maintaining one’s Twitter follower numbers.

And finally, Jim weighs in on a workmanlike Government Accountability Office report on the Committee on Foreign Investment in the United States, the Department of Defense, and national security concerns—which concludes, among other things, that (1) technology transfers should be an area of concern for the U.S. government and (2) the U.S. government is poorly situated to identify the areas of technology transfer that should be of concern. Over to you, Congress!

Stewart takes over for the interview of Woody Hartzog, author of “Privacy’s Blueprint: The Battle to Control the Design of New Technologies,” and a professor of law and computer science at Northeastern. Woody’s thesis is that traditional privacy law has focused unduly on notice and consent, yielding unreadable privacy notices and consents that mean nothing but have great legal impact. Instead, he suggests a focus on how platforms design their user interfaces, borrowing from consumer protection and products liability law. Stewart’s skeptical of the open-ended nature of the obligations Woody would like Silicon Valley to undertake, but they both at least agree that designers and government are surprisingly well-matched bedfellows.

Download the 226th Episode (mp3).

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

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee 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: 176084.mp3
Category:general -- posted at: 4:41pm EST

Our interview is with Gen. Michael Hayden, author of "The Assault on Intelligence: American National Security in an Age of Lies." Gen. Hayden is a former head of the CIA and NSA, and a harsh critic of the Trump Administration. We don’t agree on some of his criticisms, but we have a productive talk about how intelligence should function in a time of polarization and foreign intervention in our national debates.

In the news, David Kris reports that ZTE has gotten a limited life-support order from the Commerce Department. Meanwhile, Nate Jones tells us that China Mobile’s application to provide telecom service to Americans is also likely to bite the dust – after nearly seven years of dithering. On Facebook, Tony Rutkowski suggests we call this the revenge of the “neocoms.” So we do.

Remarkably, the European Parliament fails to live down to my expectations, showing second thoughts about self-destructive copyright maximalism. Nick Weaver thinks this outbreak of common sense may only be a temporary respite.

Paul Rosenzweig confesses to unaccustomed envy of EU security hardheadedness. Turns out that Europe has been rifling through immigrants’ digital data in a fashion the Trump Administration probably wouldn’t dare to try. More predictably, the Israelis are digging deep into social media to combat the stabbing attacks that afflicted the country until recently.

The DNC is trying to improve security, and it has trained 80% of its staff not to click on bad links. But as Nick Weaver and Paul Rosenzweig point out, that’s not good enough – even though there are few institutions that can get much above the DNC’s 80%. The answer? Nick says it’s two-factor authentication. We join forces to nudge Firefox toward offering the same level of support for 2FA as Google Chrome.

The feds are getting wise to the Dark Web, Nick tells us. They’re focusing on compromising the money launderers – and then their customers. This looks like a strategy that could work for the long haul.

Finally, David Kris revisits NSA’s still-troubled metadata program, asking whether “the juice is worth the squeeze.”

We’re going to keep tweeting and posting some of the week’s stories that look like candidates for the News Roundup. Please reply to or retweet those you think we should cover. Relevant feeds: @stewartbaker on Twitter, Stewart Baker on LinkedIn, and stewart.a.baker on Facebook. 

Download the 225th Episode (mp3).

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

As always, The Cyberlaw Podcast is open to feedback. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Remember: If your suggested interviewee 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-225.mp3
Category:general -- posted at: 12:14pm EST

I interview Duncan Hollis, another Steptoe alumnus patrolling the intersection of international law and cybersecurity. With Matt Waxman, Duncan has written an essay on why the U.S. should make the Proliferation Security Initiative a model for international rulemaking for cybersecurity. Since “coalition of the willing” was already taken, we settle on “potluck policy” as shorthand for the proposal. To no one’s surprise, Duncan and I disagree about the value of international law in the field, but we agree on the value of informal, agile, and “potluck” actions on the world stage. In support, I introduce Baker’s Law of International Institutions: “The secretariat always sees the United States as its natural enemy.” 

At the end, Duncan mentions in passing his work with Microsoft on international rulemaking, and I throw down on “Brad Smith’s godforsaken proposal.” Brad, if you are willing to come on the podcast to defend that proposal, I’ve promised Duncan a highly coveted Cyberlaw Podcast mug. 

California has a new privacy law, Laura Hillsman explains—though what it will look like when it finally takes effect in 2020 remains to be seen. (Laura is a Steptoe Summer Associate.)

Chris Conte reports that the SEC has charged a second Equifax manager with insider trading. I ask whether he shouldn’t have been charged with lousy site design too.

 The White House draws a line in the sand over ZTE in a letter to the Hill—but Maury and I suspect the real message is in the lack of a veto threat. Maury thinks President Trump’s “go big, then go deal” negotiating strategy is also at work in his decision only to beat up Chinese investments once rather than twice over trade tensions. 

NSA’s metadata program was restructured to rely on telecom companies rather than NSA’s own programmers. The ideologues who insisted on the formalism of leaving the metadata with the companies rather than in NSA’s computers predictably produced a private-sector meltdown. Which they’ll probably blame on NSA as well. Jamil Jaffer and I discuss. 

What do you know? Reality does win in the end, and Reality Winner finally got the hint (as well as a pretty good plea deal). 

Nextgov reveals an unimpressive showing for the Cybersecurity Information Sharing Act’s (CISA) information-sharing provisions, at least as far as sharing with the Department of Homeland Security goes. Jamil and I agree, though, that private-sector information sharing may be a better measure of CISA’s value.

In other news, the Intercept continues to pioneer relevance-free journalism. And trust in social media is collapsing, especially among Republicans, who (remarkably) also think tech companies need more regulation. 

Finally, in an experiment we may abandon at any moment, I’m going to start tweeting and posting some of this week’s stories that look like candidates for the News Roundup. Please reply to or retweet those you think we should cover. Relevant feeds: @stewartbaker on Twitter, Stewart Baker on LinkedIn, and stewart.a.baker on Facebook.

Download the 224th Episode (mp3).

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

As always, The Cyberlaw Podcast is open to feedback. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Remember: If your suggested interviewee 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: PC_224.mp3
Category:general -- posted at: 9:50am EST

I interview David Sanger in this episode on his new book, “The Perfect Weapon – War, Sabotage, and Fear in the Cyber Age.” It is an instant history of how the last five years have transformed the cyberwar landscape as dozens of countries follow a path first broken by Stuxnet. And then, to our horror, branch out into new and highly successful ways of waging cyberwar. Mostly against us.  David depicts an Obama administration paralyzed by the Rule of Lawyers and a fear that our opponents would always have one more rung than we did on the escalation ladder. The Trump administration also takes its lumps, sometimes fairly and sometimes not. At center stage in the book is Putin’s uniquely brazen and uniquely impactful use of information warfare, but the North Koreans and the Chinese also play major roles.  It is as close to frontline war reporting as cyber conflict is likely to get.

Stewart Baker with David Sanger.

Stewart Baker with David Sanger

Cyberlaw news this week is dominated by a couple of Supreme Court decisions: In Carpenter the Court held 5-4 that warrants are required to collect a week of location data from cell phone companies. Michael Vatis lays out the ruling, and I complain that the Court has kicked off a generation of litigation over the issues this decision opens up but fails to address. Tune in as Michael invokes James Madison and I counter with Ben Franklin. Who knew that the founding fathers had so much to say about the third-party doctrine?

Speaking of Court decisions that write checks for others to redeem, the 5-4 Wayfair decision is equally insouciant about triggering a generation of litigation about when internet companies must collect sales tax. After 50 years of waiting for Congress to decide a question that is clearly better resolved by legislation than judicial rule, the Court gave up and struck down the holding that a physical presence was required before sales tax had to be collected. Pat Derdenger explains just how much litigation he’ll be involved in. To his plea that Congress step in, I repeat a line I first used 25 years ago: Why should a Republican Congress enable the collection of taxes it can’t spend?

North Korea may be our president’s best bud these days, but it’s still hacking banks and conducting cyberespionage, Matthew Heiman points out. Jim Lewis advances a Darwinian justification for letting the North Koreans keep it up.

Matthew and Jim also agree that Chinese hackers are getting stealthier—probably in part because they’re chiseling around the edges of their agreement not to steal commercial secrets from US firms. We also ask whether the Chinese have begun releasing data from their OPM hack to criminal actors.

David Sanger thinks not.

Our lack of a coherent cyberwar strategy is becoming apparent not just to adversaries but also to Congress, which is in the process of mandating a new commission on cyberwar strategy. Whether calling it Project Solarium, a hallowed name in defense thinking, will make the commission more successful remains to be seen.

The Administration is struggling to come up with privacy principles that can compete with GDPR. Matthew and I predict that it won’t succeed.

One last note: David Sanger is on a book tour—if you’re in the Washington, D.C. area, he will be hosting a talk and book signing at Politics & Prose on Thursday, June 28, at 7pm.

Download the 223rd Episode (mp3).

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

As always, The Cyberlaw Podcast is open to feedback. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Remember: If your suggested interviewee 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-223.mp3
Category:general -- posted at: 10:21am EST

Our interview is with Megan Stifel, whose paper for Public Knowledge offers a new way of thinking about cybersecurity measures, drawing by analogy on the relative success of sustainability initiatives in spurring environmental consciousness. She holds up pretty well under my skeptical questioning. 

In this week’s news, Congress and the executive branch continue to fight over the bleeding body of ZTE, which has already lost nearly 40 percent of its market value. The Commerce Department has extracted a demanding compliance and penalty package from the Chinese telecom equipment manufacturer. The Senate, meanwhile, has amended the NDAA to overturn the package and reimpose what amounts to a death penalty (see Section 1727). Brian Egan and I dig into the Senate’s language and conclude that it may do a lot less than the senators think it does—that may be the best news ZTE is going to get from Washington this year. 

Judge Richard Leon has approved the AT&T-Time Warner merger. Gus Hurwitz puts the ruling in context. His lesson: Next time, the Justice Department needs better evidence.

Brian gives us an update on what’s not in the CFIUS reform bill now that the CFIUS reform bill is in the NDAA and on its way to adoption. I suggest that the bill is a symptom of a new “Cool War,” and the beginning of a long, slow process of breaking the commercial world back into competing blocs. Complete with mirror-imaging, as both China and Pentagon start publishing lists of the technologies they expect to use in the burgeoning competition.

Kaspersky Labs is getting a lesson in Cool War-bloc dynamics, as the EU Parliament trashes the company as a malicious actor and the company acts out, terminating its cybersecurity arrangements with EU institutions.

Megan Stifel and I explore what it means that Chinese hackers are apparently back to their old tricks—stealing competitive secrets for commercial advantage. 

Given a choice between EFF and the EU, I come down on the EFF’s side, at least when the EU is snuggling up to Big Copyright and forcing internet companies to automatically scan customer-uploads for copyright violations. This is bad news for users, of course, since the tools are never perfect, and the incentives will be to err on the side of preventing speech. But, really, EU, if you were wondering why you’ll never have a vibrant tech startup scene, it’s time to look in the mirror. This measure may sound as though it will be tough on YouTube, but it will be fatal to its smaller competitors.

But surely, you say, the owners of intellectual property will be constrained by the need to keep their consumers happy. Yeah, right. If you believe that, you might want to take a closer look at the astonishing surveillance system that intellectual-property owners have dreamed up in Spain. At least nothing so intrusive could be done in Europe, where GDPR has created a privacy utopia …

More Cool War casualties: U.S. sanctions on Russia have hit a couple of companies that Silicon Valley thought of as friends and neighbors. This dividing-into-blocs business has some surprising costs. Brian, of course, wants to know how to square these sanctions with President Trump’s view of Russia. I supply the answer (two, actually), but you’ll have to listen to find out what they are.

Gus Hurwitz plugs his new privacy paper, which pantses privacy campaigners for hypocrisy. 

Gus also comments on Apple’s new USB-restricted mode, which law-enforcement support-contractors say they’ve already defeated.

In the good news of the week, the Southern Poverty Law Center gets a comeuppance in the form of an unconditional apology and $3.4 million libel settlement for including Maajid Nawaz in its nasty and irresponsible 2016 “Field Guide to Anti-Muslim Extremists.” If you’re keeping score at home, that’s $3.37 million down, $429 million to go before SPLC’s grotesquely swollen endowment is used up.

Speaking of comeuppances, I get mine for correcting Jennifer Quinn-Barabanov’s pronunciation of cy près as “sigh pray.” I’m a “see pray” guy. Alert listener Tim White decided to call up Brian Garner of “Garner’s Dictionary of Modern Legal Usage” for a ruling. In a moment straight out of a Woody Allen film, Garner responds through an editor that “Professor Garner is editing the entries in Black’s and Garner’s Dictionary of Legal Usage to reflect that /sigh/ is the traditional anglicized pronunciation and that /see/ is a repatriated French pronunciation. So both pronunciations will be listed, but /sigh/ will be listed first as the preferred one.” Short version: I’m condemned as an egregious grammar snob who doesn’t know a repatriated French pronunciation when he sees one. I think I owe Jennifer Quinn-Barabanov an apology—and $3.37.

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

As always, The Cyberlaw Podcast is open to feedback. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Remember: If your suggested interviewee 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: PC222.mp3
Category:general -- posted at: 3:21pm EST

The 11th Circuit’s LabMD decision is a dish served cold for Michael Daugherty, the CEO of the defunct company. The decision overturns decades of FTC jurisdiction, acquired over the years by a kind of bureaucratic adverse possession. Thanks to the LabMD opinion, practically all the FTC’s privacy and security consent decrees are at risk of being at least partly unenforceable—and if the dictum holds, the FTC may have to show that everything it views as an “unfair” lack of security is actually a negligent security practice.

Commerce says it has a deal with ZTE. Nate Jones wonders whether the bipartisan opposition to the deal from Congress is too late.

David Kris introduces a remarkable week for Justice Department responses to leaks of classified information. A long-time security director at the Senate intelligence committee succumbs first to the wiles of an aspiring reporter, and then to the temptation to lie about the romance to the FBI. James Wolfe will pay a heavy price for his leaks of classified information—without ever being tried for leaking classified information.

I can’t help asking how the FBI gathered as much information as they did from supposedly secure services like Signal and WhatsApp. Nick Weaver and David point to metadata as the fatal flaw in Wolfe’s security—and to cloud backup as the fatal flaw in Manafort’s (along with the problem that any secret shared with another is a hostage to that party’s inclinations).

The Chinese are having a hell of a run at U.S. secrets, David also reports, as evidenced by an espionage arrest, another espionage conviction, and a major story about another Chinese hack of Pentagon technology. The arrest of Hansen, who was in money trouble, may turn out to be the first fruits harvested by the Chinese from their trove of Office of Personnel Management files listing all the weaknesses of U.S. clearance holders.

The Departments of Justice and Homeland Security want new authority to regulate drones. Nick is supportive and offers some exciting and chilling video to support his view that drones will soon pose a wide variety of threats.

Nate reports on the Democrats’ effort to get a threat assessment of President Trump’s phone use.

Speaking of things we really need to worry about more, Nick tells us the Russian’s VPNFilter is worse than we thought, and we already thought it was bad. It’s time to take the security of your home router very seriously. 

I close with a quick rant, calling out Twitter, Facebook, Google, and Amazon for all accepting advice on who is a “hate” group from the irresponsible and irredeemably biased Southern Poverty Law Center. Really, guys, if you want half the country to hate Silicon Valley, this is exactly what you should be doing.

Download the 221st Episode (mp3).

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

As always, The Cyberlaw Podcast is open to feedback. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Remember: If your suggested interviewee 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: PC221.mp3
Category:general -- posted at: 4:17pm EST

GDPR has finally arrived, Maury Shenk reminds us, bringing both expected and unexpected consequences. Among the expected: New Schrems lawsuits for more money from the same old defendants; and the wasting away of the cybersecurity resource that is the WHOIS database, as German courts ride to the rescue of insecurity—in the name of privacy.

Also probably to be expected, at least for those who have paid attention to the history of technology regulation: The biggest companies are likely to end up boosting their market dominance.

Less expected: The decision of some big U.S. media to just say no to European readers, recognizing them as the Typhoid Marys of the internet, carrying a painful and stupid regulatory infection to every site they visit.

In other unsurprising news, Gus Hurwitz and Megan Reiss note, Kaspersky has now lost both its lawsuits against U.S. government bans in a single district court ruling.

In genuinely troubling news, Iran is signaling a willingness to attack U.S. industrial controls, which run the electric grid and pipelines and sewage systems, using the same malware it used against the Saudis. Since Iran was willing to launch DDoS attacks on U.S. banks the last time negotiations over its nuclear program hit a snag, this is a threat that needs to be taken seriously.

The good news is that the U.S. government released two reports this week on how to we’ll respond to both threats—cyberattacks on our grid and to DDoS attacks on our web companies. The bad news is that both reports suck. If you were feeling optimistic before this, I argue, a close reading of the reports will leave you with a sinking feeling that this is the fourth administration in a row without a clue about how to deal with such attacks.

Quick Hits

Russia wants Apple’s help in subduing Telegram, Maury reports. I predict that Tim Cook will fold like a cheap lawn chair. I’m guessing that it’s really only American law enforcement that he’s willing to thwart.

North Korea is getting credit for peacemaking while spreading malware to U.S. infrastructure. A lot of the attacks are enabled by phishing emails with news about the Trump-Kim summit. Which, come to think of it, may be the real reason Kim keeps turning the summit off and on: He’s got to generate clickbait for all those phishing emails.

Trump wants to relieve ZTE of its company-killing Commerce sanctions, but Congress may not let him. Hardest hit? Paul Ryan, who’ll have to decide whether to let the House take a free vote to thwart the President on national security grounds. At least that’s my quick assessment.

Gus takes us quickly through the next big security issueIMSI catchers and SS7 exploitation. This is a big problem, or really two big problems, that is bound to get real media attention—just as soon as civil liberties groups figure out how to blame it on Trump.

In other news, I’ll be hosting a Reddit AMA on r/legaladvice on June 6 starting at 2 p.m. EST. The best questions may be read in the next episode, so be sure to contribute. You can find more information in the announcement here.

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As always, The Cyberlaw Podcast is open to feedback. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Remember: If your suggested interviewee 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: PC_220.mp3
Category:general -- posted at: 11:32am EST

This episode features a conversation with Nick Bilton, author of “American Kingpin: The Epic Hunt for the Criminal Mastermind Behind the Silk Road.” His book, out in paperback, tells the story of Ross Ulbricht, the libertarian who created the hidden Tor site known as the Silk Road and rode it to massive wealth, great temptation, and, finally, a life sentence. It’s a fine read in its own right, but for those who know the federal government, the most entertaining parts concern the investigators who brought Ulbricht down. Each one has ambitions and flaws that mirror the stereotypes of their agencies, even—or perhaps especially—when the agents go bad. It’s got everything: sales of body parts, murder (maybe!), rogue cops, turf fights, and justice in the end.

Sadly, I predict this episode will generate more hate mail than any other. Why? You’ll have to listen to find out. Feel free to question my judgment with emails to CyberlawPodcast@steptoe.com.

You can subscribe to The Cyberlaw Podcast using iTunesPocket CastsGoogle Play, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Send your questions and suggestions for topics or interview candidates to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Remember: If your suggested interviewee 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-219.mp3
Category:general -- posted at: 6:24pm EST

In this episode, Markham Erickson highlights the Mugshots.com prosecution. The site had a loathsome business model, publishing mugshots for free and charging hundreds of bucks to people who wanted the record of their arrests taken down. Now the owners are being prosecuted in a case that combines the worst of European crazy (“surely criminals have a right to be forgotten”) and California crazy (“profits are being earned here—surely that calls for a criminal investigation”). Markham explains why this may be a hard case for California to win—and then joins me in expressing schadenfreude for the owners, whose mugshots are even now spread all across the internet.

Meanwhile, the ZTE mess gets messier as Congress moves to block President Trump’s proposed sanctions relief. Democrats are joining national security Republicans to move legislation on the topic. Who says President Trump is the divider in chief?

Michael Vatis digs into the FBI’s latest high-profile problem: it grossly overstated the number of encrypted phones it encountered last year. Was it a mistake or a misrepresentation? Our panel leans toward mistake.

Michael and I also criticize President Trump’s decision to dump government security for his phone. Michael reminds us of the President’s scathing treatment of Hillary Clinton’s insecure email server and asks why an insecure cell phone is different.

And in a new feature that we still haven’t made up our mind about, we do a lightning round of stories we couldn’t get to:

Download the 218th Episode (mp3).

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As always, The Cyberlaw Podcast is open to feedback. Send your questions and suggestions for topics or interview candidates to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Remember: If your suggested interviewee 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: Cyberlaw_Podcast_218.mp3
Category:general -- posted at: 2:27am EST

In our 217th episode of the Cyberlaw Podcast, the blockchain and cryptocurrency team takes over the podcast again.

Alan Cohn hosts another of the podcast’s periodic deep dives into all things blockchain and cryptocurrency to discuss recent regulatory developments and the current state of play of the industry.

Our episode begins by looking at the Treasury Department’s letter regarding initial coin-offerings (“ICOs”). Jack Hayes tells us the key takeaways from the letter, including that persons engaged in ICOs could be considered a Money Transmitter under FinCEN’s regulations. Not only does the letter address companies based in the U.S. that are issuing tokens, but also those based outside of the U.S. that may have a substantial part of their business in the U.S. or be issuing tokens to U.S. persons. The idea that FinCEN can reach outside of the U.S. border is not a new one. Last summer we saw a civil enforcement action against BTC-e, a foreign cryptocurrency exchange.

Jack and Alan also discuss the New York Attorney General’s recent voluntary transparency questionnaire sent to both U.S. and non-U.S. cryptocurrency exchanges. New York has seen its fair share of controversy with respect to cryptocurrency with the implementation of the BitLicense and the resulting exodus of a number of cryptocurrency companies.

Lisa Zarlenga provides an expert overview of the Internal Revenue Service’s (“IRS”) activity in the space starting with IRS Notice 2014-21. For tax purposes, convertible virtual currency (“CVC”) is treated as property, which means that every time you buy or sell CVC you are engaging in a taxable event and need to report capital gains or losses. The notice did not provide much guidance on accounting for and determining basis of cryptocurrency. Lisa also discusses whether exchanging one cryptocurrency for another cryptocurrency is a like-kind exchange and how the 2018 Tax Reform Bill changes things. With the increasing popularity of airdrops, Lisa and Alan tell us about the tax treatment of tokens received during an airdrop.

Chelsea Parker discusses trends coming out of New York Blockchain Week 2018. Consensus 2018 was three times bigger than Consensus 2017 and there were almost three dozen other official conferences and events that were part of NY Blockchain Week. Needless to say, interest in blockchain appears to be at an all-time high, and there was a particularly high international presence. Government officials from countries such as Gibraltar and Bermuda highlighted their proactive steps to implement regulation while still encouraging innovation and protecting consumers. This idea of balancing regulation while still encouraging innovation was a common theme across panels.

Alan highlights Steptoe’s panel “Blockchain in Supply Chain, Navigating the Legal Waters” and the key questions discussed during Alan Cohn and Lisa Zarlenga’s presentations on the tax treatment of digital currencies and tokens at the Accounting Blockchain Coalition’s conference. Finally, the panelists highlight where they see the industry going next in terms of adoption and regulation. Lisa discusses the possibility of additional guidance from the IRS while Jack discusses the future of sovereign cryptocurrencies and the resulting regulatory challenges.

Chelsea Parker, Lisa Zarlenga, Alan Cohn, and Jack Hayes (left to right)

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Download the 217th Episode (mp3).

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

Direct download: TheCyberlawPodcast-217.mp3
Category:general -- posted at: 11:51am EST

The Cyberlaw Podcast has now succumbed to an irresistible media trend: We begin the episode with a tweet from President Trump. In this one, he promises to get ZTE “back in business, fast.” Paul Rosenzweig and Nick Weaver provide the backstory on and a large helping of dismay at the president’s approach to the issue.

I question the assumption that this will make the life of Chinese telecom equipment makers easier in the U.S. If anything it could be worse. The 2019 National Defense Authorization Act being drafted in the House will make it very difficult for telecom companies that do business with the Pentagon to rely on Chinese (or Russian) equipment. (See Page 259). If anything, the president probably ensured a unanimous Democratic vote for the measure.

The cyber coordinator position in the White House is on the endangered list. Paul explains why it should survive. His take is not completely snark-free. Summing up the first two stories, I suggest that every president gets the White House he deserves.

Nick explains how badly American democracy could be harmed by a relatively trivial Russian (or Iranian, or North Korean) cyberattack on voter registration databases later in 2018. Indeed, they had a chance to launch such an attack in 2016, according to the Senate intelligence committee. This is an avoidable disaster if election officials take action now, I point out, but Paul doubts they will.

Paul and I lament the insouciance and ahistoricity of the Fourth Circuit’s new ruling adding half a dozen new judicial constraints to border searches of cell phones.

Speaking of cyberattacks, you’d better buckle up, because Iranian retribution for U.S. withdrawal from the Joint Comprehensive Plan of Action is probably being prepared as you read this. And according to a highly educational Recorded Future/Insikt report, Iran’s semi-privatized hacking ecosystem is likely to err on the side of escalation.

The Iranians aren’t the only ones upping their game. Nick reports on an excellent Crowdstrike report on the new sophistication of Nigerian scammers.

We close with Nick’s dissection of the troubling code decisions underlying a pedestrian death caused by Uber’s autonomous vehicle.

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Download the 216th Episode (mp3).

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

Direct download: TheCyberlawPodcast-216.mp3
Category:general -- posted at: 9:46am EST

Our interview is with Nick Schmidle, staff writer for the New Yorker. His report on cybersecurity work that goes to the edge of the law and beyond turns up some previously unreported material, including the tale of Shawn Carpenter, a cybersecurity researcher with a talent for showing up in all the best hackback stories.

In the news, Jamil Jaffer reports on domain fronting, a weird form of protection for people hiding the site they’re connecting to behind some bland Google or AWS site. Some of those people are dissidents in authoritarian lands; many are authoritarian governments hacking secrets out of corporate networks. In any event, domain fronting is disappearing before it had even made an impression on the public’s mind. I say good riddance, bolstered in my opinion by the wailing of professional privacy groups that (Do I have to remind you?) don’t care about your security at all.

The Supreme Court takes a case of great interest to social media and other tech firms who attract class actions. Jennifer Quinn-Barabanov explains the law and the likely outcome. I mostly quibble about how to pronounce “cy pres.”

Move fast and break things probably isn’t the best motto if the thing you’re likely to break is, um, you. Megan Reiss talks about the death of Aaron Traywick, and the risks of bringing the hacking ethic to genetic engineering.

Europol and a host of allies were bragging last week about taking down ISIS’s online recruiting and propaganda infrastructure. But this week they’ve had to admit that ISIS is back on line. Jamil and I talk about what lessons can be drawn from cyber-whac-a-molery.

For Chinese phone makers, it never rains but it pours. Fresh off a ban on Chinese phones from US military retail stores, there may be even more pain in the works for ZTE and other Chinese mobile infrastructure providers.

Finally, Megan Reiss and I dig deep into Rep. Ruppersberger’s thoughtful take on cybersecurity, information sharing and DHS.

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Jennifer Quinn-Barabanov with Dr. Megan Reiss

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Direct download: TheCyberlawPodcast-215.mp3
Category:general -- posted at: 12:04am EST

This episode features a new technology-and-privacy flap. The police finally catch a sadistic serial killer, and the press can’t stop whining about DNA privacy. I argue that DNA privacy is in the running for “Dumbest Privacy Issue of the Decade.” Because privacy is all about making sure the police can’t use your data to catch killers. Paul Rosenzweig refuses to take the other side of that debate.

Ray Ozzie has released a technical riposte to the condescending Silicon Valley claim that math proves the impossibility of securely accommodating law-enforcement access to encrypted data. Paul and I muse on the aftermath, in which Silicon Valley will actually have to win the debate rather than claiming that there is none.

Jim Lewis and I note the likelihood that ZTE is contemplating litigation against the U.S. ban on technology sales to the company. What really bothers Jim, though, is the likelihood that the U.S. sanction will accelerate China’s move to complete self-sufficiency in the technology sphere. That’s something that neither the U.S. government nor U.S. industry is really ready for.

The House intelligence committee’s report on Russia and the election is out. It finds no scandal, other than Russia’s shocking attack on our institutions, though it does criticize “ill-advised” action by Trump campaign officials. The minority report says that the investigation should have gone on even longer. Paul and I have different takes on the value of the exercise.

Gen. Paul Nakasone is about to take over at NSA after a remarkably easy ride to confirmation. Jim Lewis finds comfort and diversion in the effort of privacy campaigners to add some bumps to the general’s road.

Finally, Paul and I debate whether Donald Trump, Jr. committed a Computer Fraud and Abuse Act felony by logging on to an opposition website with “guessed” credentials supplied by WikiLeaks. Actually, there isn’t much debate about whether that’s a crime, but I question whether criminalizing such a trivial violation of network mores raises more questions about the CFAA than about Don Jr.

And a bit of special pleading: How can there possibly not be any reviews of The Cyberlaw Podcast on Stitcher Radio? Yet it appears to be true. Please get out there and comment, loyal Stitcher listeners to the podcast!

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Download the 214th Episode (mp3).

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

Direct download: TheCyberlawPodcast-214.mp3
Category:general -- posted at: 9:43am EST

In a news-only episode, we get a cook’s tour of the RSA conference from attendees Paul Rosenzweig, Jim Lewis, and Stewart Baker. Top trends we saw at RSA: more nations attacking cybersecurity firms over attribution, more companies defending themselves outside their own networks ("hacking back"), and growing (if still modest) respect for the Department of Homeland Security's role in cybersecurity. Oh, and Microsoft’s Digital Geneva Convention is still a mashup of profound naïveté and deep cynicism, but Microsoft’s Cyber Tech Accord may do better—at least until the Federal Trade Commission gets hold of it.

In other news, ZTE is going to be hammered for showing contempt for U.S. export control enforcement. But the back-splatter on U.S. suppliers will be severe as well. The United States is picking a big, big fight with China on the future of technology, and it’s going to need a strategy. Xi Jinping reads the writing on the wall.

Speaking of big fights, Telegram is in a doozy with Russia over its refusal to supply crypto keys to the government. It looks as though Telegram’s use of Google and other domains as proxies (“domain fronting”) is making it hard for Russia to work its will without harming other internet companies. So far, it looks as though Russia is willing to bring the pain, but the ban isn’t completely effective.

In what may be related news, Google is engineering domain fronting out of its products. The press whining about the civil liberties implications of Google’s moves triggers a classic Baker rant about how privacy zealots don’t really care about security—since domain fronting is a principal method by which network security is defeated and crime facilitated.

And while my rant is rolling, why not include the EU’s shameful drive-by execution of the WHOIS database. I call on the Obama NTIA officials who killed off our last leverage over ICANN to apologize to Ted Cruz for the debacle.

Maury lays out the remarkable parallelism between the U.S. Cloud Act and a new EU regulation on cross-border data sharing for law enforcement.

Finally, or nearly so, Paul unpacks the way in which liability for the SWIFT hacks may drive cybersecurity standards for banks.

And in closing, I note that China is now the clear leader in face recognition, having found a single suspect in a crowd of 60,000 concertgoers. It’s the leader not because of China’s technical strength, though that’s impressive, but because of Silicon Valley political correctness. Remember that when law enforcement agencies end up buying Chinese tech and paying the cybersecurity price.

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Download the 213th Episode (mp3).

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

Direct download: TheCyberlawPodcast-213.mp3
Category:general -- posted at: 11:19am EST

In episode 212 of the podcast, Stewart Baker is at RSA, and Brian Egan, Maury Shenk, and Pete Jeydel of Steptoe are joined by David Kris and Nate Jones of Culper Partners LLC to cover the good, the bad and the ugly of the week that was.

In U.K. cyber issues: Brian, Maury, David and Nate discuss the U.S.-U.K.-France weekend airstrikes against Syria’s chemical weapons program, and reported threats of Russian “cyber retaliation” against the British. We also note the continued trends of intelligence disclosures reflected in last week’s speech by the GCHQ director condemning Russia over the Skripal attack and disclosing U.K. offensive cyber operations against the Islamic State.

David provides insights into the government’s proposed use of a U.S. government “taint team” to conduct a privilege review of the materials seized during the FBI’s raid of Michael Cohen’s offices. Bottom line: (1) Warrants to seize evidence from attorneys are relatively rare but not unprecedented, (2) President Trump and Michael Cohen’s requests to conduct their own screening of the materials probably won’t fly, and (3) a scenario in which an independent special master oversees the review is quite possible (but has been delayed for the moment).

Maury discusses the latest in the Schrems data protection litigation against Facebook: last week’s unsurprising decision by the Irish high court to refer questions related to the EU Standard Contractual Clauses to the European Court of Justice. Maury explains why he remains skeptical that the EU court will invalidate the use of these clauses.

Pete explains why Treasury is probably considering its (very broad) options under the International Emergency Economic Powers Act in answering President Trump’s call for more restrictions on Chinese investments.

And David and Nate discuss the latest in the encryption debates, including a Justice Department inspector general's report criticizing the FBI’s mishandled attempts to break the encryption of the San Bernadino shooter’s iPhone, and the latest in encryption-decryption litigation before the lower courts.

Steptoe Partner Brian Egan (right) with Nate Jones

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Download the 212th Episode (mp3).

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

Direct download: TheCyberlawPodcast-212.mp3
Category:general -- posted at: 11:14pm EST

Our interview is with Chris Bing and Patrick Howell O’Neill of Cyberscoop. They’ve broken two cyberscoops in the last week or so. First, an in-depth look at Kaspersky’s outing of a U.S. cyberespionage program aimed at foreign terrorists. Hint to Kaspersky: Bringing out a brass band to warn terrorists that they’re being tracked by the US government is not likely to help you win your PR and legal battles in the United States. Chris Bing also covers his other scoop—the surprisingly advanced talks among the leaders of the Senate judiciary committee on a bill to address the FBI’s “going dark” problem.

In the news, Jennifer Quinn-Barabanov and I debate the impact of two recent incidents on the future of self-driving cars. She thinks they’ll weather these events and that the lives such cars save will outweigh the deaths. I’m less sure, mainly because the mistakes that lead to autonomous vehicle deaths are so different from the usual human-driver error and therefore inherently compelling and disquieting.

Nick Weaver and I cover the Grindr security flap and the company's transmission of HIV status without complete encryption protection. I think there’s less to the story than meets the eye and that Grindr is getting more heat than it deserves.

Sens. Ed Markey (D.-Mass.) and Blumenthal (D.-Conn.), on the other hand, deserve a lot more heat than they’ve gotten so far. How clueless can they be to send thirteen “when did you stop beating your husband” questions to Grindr’s CEO and not notice that he’s based in Hong Kong? In fact, Grindr was bought last year by a Chinese company. Neither senator, though, bothers to ask where the database of gay Americans is stored and what access the Chinese government has to it? Or how that deal got through CFIUS. Sad! To coin a phrase.

Nick covers the big new internet-of-things botnet’s tryout and asks why it was the banks that got attacked. I’ve got some theories, as does Nick. Along the way, he dispenses advice for people who have just realized that their router is probably the weakest link in their home network’s security.

When does the first amendment allow researchers to violate websites’ terms of service? Judge John Bates has some preliminary answers in the Sandvik case, says Brian Egan, who thinks the case may turn into an important and perhaps unhappy ruling for websites in the future.

In other topics, Softbank is getting a CFIUS workout. YouTube’s demonetization policy leads to a mass shooting and suicide at company headquarters. Stingrays blanket the District of Columbia. And Keeper can’t even get through a news cycle about its lame lawsuit without another story about its lame security.

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Direct download: TheCyberlawPodcast-211_1.mp3
Category:general -- posted at: 11:48am EST

In the news roundup, Nick Weaver, Ben Wittes and I talk about the mild reheating of the encryption debate, sparked not just by renewed FBI pleading but by the collapse of the left-lib claim that building in access is impossible because math. The National Academy report on encryption access has demonstrated that access is practicable, with support from a group of prominent tech experts, such as Ray Ozzie, all of whom know math.

Speaking of law enforcement, it was a good week for cybercrime enforcement. Nick and I touch on two victories for the good guys, with the Carbanak mastermind busted in Spain and Yevgeny Nikulin extradited to the U.S. over Russian objections.

Meanwhile, the Department of Homeland Security is moving forward on one of the more significant efforts to prevent terrorist travel across borders by using social media data effectively. The agency will be requiring social media names (but not passwords) from visa applicants, according to a proposed rule now gathering comments. Maury Shenk, Ben, Nick, and I talk about the privacy and first amendment issues implicated by the policy. We don’t agree on most of those issues.

But we find surprising unanimity in mocking Julian Assange for deservedly losing his internet access at the Ecuador embassy. The panel even endorses Matt Green’s wicked suggestion for trolling Assange from the sidewalk outside Assange’s Ecuadoran squat.

We close with a quick sack dance over the prone form of Keeper Security, which has dropped its libel suit against Dan Goodin and Ars Technica, probably because it was going to lose; the defendants’ coverage of Keeper’s serious security problems was straight and fair. Bottom line: there are plenty of good password managers; why use one whose management sues to suppress news of its product’s security holes? When that sinks in, Keeper won’t just be a loser; here’s hoping it will be a weeper too.

Our interview with David Sanger covers the vulnerability of the US grid, the psychic income and electoral popularity that Vladimir Putin gets from crossing the West’s red lines, and whether we’d be better off sparking an escalating set of cyberattacks now or later.

If the last question reminds you that John Bolton will soon be the national security adviser, you’re not alone. We take a few minutes off from plumbing cyberlaw to exploring just what kind of national security adviser Bolton will be. My bottom line: better than his reputation, and maybe much better.

 

Maury Shenk, Ben Wittes and Stewart Baker (left to right)

 

Steptoe partner Stewart Baker with David Sanger

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Download the 210th Episode (mp3).

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Direct download: TheCyberlawPodcast-210.mp3
Category:general -- posted at: 9:33am EST

It was a cyberlaw-packed week in Washington. Congress jammed the CLOUD Act into the omnibus appropriations bill, and boom, just like that, it’s law. Say goodbye to the Microsoft Ireland case just argued in the Supreme Court. Maury Shenk offers a view of the Act from the United Kingdom, the most likely and maybe the only beneficiary of the Act. Biggest losers? For sure, the ACLU and EFF and their ilk, who were more or less rendered irrelevant when they lost the funding and implicit backing of Silicon Valley business interests.

But wait, there’s more congressional action, and it is bad news for Silicon Valley business interests. For the first time, the immunity conferred on social media platforms by Section 230 of the Communications Decency Act has been breached. Jamil Jaffer and I discuss FOSTA/SESTA, adopted this week. In theory, the act only criminalizes media platforms that intentionally promote or facilitate prostitution, but any platforms that actually read their own content are likely at risk. Which is what Craigslist concluded, killing its personals section in response to the act. Worse for Silicon Valley, this may just be the beginning, as its unpopularity with left and right alike starts coming home to roost.

Not to be upstaged by Congress, President Trump announces a plan to impose $60 billion in tariffs on Chinese goods and new investment limits on Chinese money. Sue Esserman explains the plan and just how serious an issue it’s addressing.

Jim Lewis tells us about the FCC’s rumored plan to pile on Chinese telecom manufacturers, adopting a rule to bar the use of Universal Service funds to purchase Chinese telecom infrastructure gear. If we want to keep China out of our telecom infrastructure, he says, we should be prepared to pay a hefty price.

In any other week, Jim and Jamil would get to spend quality time chewing over the indictment and sanctioning of Iranian hackers charged with massive thefts of intellectual property. Not this week. They give their bottom line up front: Indictments and sanctions are a good first step but can’t be our only response.

Speaking of hating Silicon Valley, there’s a wave of criticism—and a lawsuit—building against Uber in what may be a self-driving car accident that better tech could have prevented. Jamil urges caution in reaching conclusions.

We barely have time for the massive flap over Facebook and Cambridge Analytica. Still, I can’t help noting that in 2012, when the Obama campaign bragged about stripping the social graph of its Facebook followers, there was no privacy scandal. Today, after Cambridge Analytica made dubious claims to have done something similar, the EU’s Vera Jourova sees a “threat to democracy.” If you’re a conservative who supports new privacy attacks on Facebook, don’t blame me when it turns out that the new privacy law is weaponized against the right, just as the old one has been.

And, as a token bit of international news, China’s social credit system is being implemented in a totalitarian fashion that reminds me of Lyft’s embrace of the McCarthyite Southern Poverty Law Center, in that both systems deny transportation to those suffering from wrongthink. Maury Shenk says it also tells us something about the efficiency and clarity of authoritarian uses of new technology.

Speaking of wrongthink, Google’s YouTube is banning firearms demo videos. Some of the banned videos may soon be hosted on Pornhub, which at least allows all those guys who used to read Playboy “for the articles” to visit pornhub “for the gun instructional videos.”

Finally, for our interview, Cyberlaw Podcast joins forces with the hosts of National Security Law Today, a podcast of the ABA Standing Committee on Law and National Security.

We interview Michael Page of OpenAI, a nonprofit devoted to a nonprofit devoted to developing safe and beneficial artificial intelligence. It’s a deep conversation, but lawyers will want to spend time with the latest study suggesting that AI reads contracts faster and better than most lawyers. Brrr!

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

The Cyberlaw Podcast is hiring a part-time intern for our Washington, DC offices. If you are interested, visit our website at Steptoe.com/careers.

Download the 209th Episode (mp3).

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

 

Direct download: TheCyberlawPodcast-209.mp3
Category:general -- posted at: 10:29am EST

All of Washington is mad at Silicon Valley these days, as our news roundup reveals. Democrats and the media have moved on from blaming Hillary Clinton’s loss on Vladimir Putin; now they’re blaming Facebook and Cambridge Analytica. Gus Hurwitz and I have doubts about the claims of illegality, but I reprise my frequent critique of privacy laws: They are uniquely likely to be enforced against those who annoy governing elites (because they’re so vague and disconnected from objectionable conduct that they can be enforced against almost anyone).

Alan Cohn describes the many regulatory agencies now feeling emboldened to take a whack at cryptocurrencies. He’s hopeful that only bad actors will actually feel the blow.

I lay out the remarkably aggressive and novel enforcement philosophy behind CFIUS’s rejection of the Broadcom-Qualcomm deal—and the steadily advancing congressional effort to regulate Silicon Valley’s Chinese connections more closely. That effort has featured some remarkably harsh political attacks on tech giants like IBM and General Electric.

Is all this hate for techies good or bad for the effort to re-impose net neutrality through the courts? The states? Stephanie Roy maps the terrain, which turns out to be every bit as muddled as you thought the last time you read about it.

Need another reason to hate technology? How about this: It’s soon going to kill someone. I explain the latest scary reports from Saudi Arabia’s industrial control system—and America’s.

Pressed for time, we do quick hits on stories that deserved more but got crowded out:

  • Twitter suspends comedian Steven Crowder for a video in which an intern crashed an LGBTQ meeting in SXSW claiming to identify as a computer.
  • YouTube follows suit.
  • Yet somehow Louis Farrakhan keeps both his Twitter account and its coveted blue check while tweeting crap like this: “the FBI has been the worst enemy of Black advancement. The Jews have control over those agencies of government.”
  • At the same time that it’s broadcasting Farrakhan, Twitter seems to be blocking much of the Drudge Report.
  • And Western Journal (WJ) says Facebook’s new algorithm for “giving a boost to quality news” reduced lefty site traffic by 2 percent and righty site traffic by 14 percent. As an example, comparing two New York tabloids with very different politics, WJ says the change boosted Facebook’s traffic to the lefty New York Daily News by 24 percent and cut the righty New York Post’s traffic by 11 percent. (Similar claims were made by another conservative site using a different methodology.

Finally, our interview is with Pete Chronis, Turner’s Chief Information Security Officer and author of a new book, The Cyber Conundrum. Pete lays out his vision for a cybersecurity moonshot, and the two of us explore particular cybersecurity remedies that make up the effort. We take detours to explore the vulnerabilities equities process, bot in the U.S. and in China. We also touch on the unwise purist stand being taken by IETF on TLS 1.3, which seems determined to offer internet users what might be called “Privacy and Insecurity—By Design.” (And to bring this post full circle, if you were wondering why ordinary people are getting sick of dancing to the tune of Silicon Valley engineers, the IETF’s stiff-necked and counterproductive position on security for corporate network users would be a good place to start.)

As always The Cyberlaw Podcast is open to feedback.  Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

The Cyberlaw Podcast is hiring a part-time intern for our Washington, DC offices. If you are interested, visit our website at Steptoe.com/careers.

Download the 208th Episode (mp3).

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

 

Direct download: TheCyberlawPodcast-208.mp3
Category:general -- posted at: 7:43pm EST

Our interview this week is with Amb. Nathan Sales, the State Department’s counterterrorism coordinator. We cover a Trump administration diplomatic achievement in the field of technology and terrorism that has been surprisingly under covered (or maybe it’s not surprising at all, depending on how cynical you are about press coverage of the Trump administration). We also explore new terrorism technology challenges and opportunities in social media, State’s role in designating terrorists, the difference a decade can make in tech and terror policy, and how the ambassador lost his cowboy boots.

In the news roundup, China seems to be hiding behind half our stories this week. Brian Egan and I sift through the entrails of CFIUS’s pronouncements on the Qualcomm-Broadcom takeover fight charts, where Chinese competition in 5G is an ever-present subtext.

More broadly, we point to a flood of stories suggesting that the U.S. government is just beginning to struggle with the challenge posed by an economically strong adversary nation. These include accusations of “weaponized capital,” naïve and compromised US academic institutions, and what amounts to a Chinese intelligence-industrial-unicorn complex.

The SEC says digital coin exchanges may be unlawful; bitcoin takes a market hit. But Matthew Heiman, in his first appearance on the podcast, expresses some doubt about the SEC’s authority over many of the businesses the agency called out.

The SEC wants something else to worry about, maybe it should be paying more attention to the Internet Engineering Task Force, where techno-privacy zealots are getting ready to cripple the ability of business enterprises to secure their networks and comply with employee monitoring requirements. Living down to my rock-bottom view of privacy campaigners, the IETF seems to be saying that in order to signal their virtue on privacy issues, they are happy to sacrifice our security – and compliance with law.

Part of the problem may be a lack of technically sophisticated staffers in government; Matthew and Jamil Jaffer chew over the cyber staffing crisis in government, and what can be done about it.

Finally, Jamil and Matthew comment on FBI director Wray’s statement that the FBI is not looking to blow a regulatory whistle on data-breached companies that ask for the Bureau’s help.

Our guest interview is with Nathan Sales, ambassador-at-large and coordinator for counterterrorism at the State Department.

As always, the Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

The Cyberlaw Podcast is hiring a part-time intern for our Washington, DC offices. If you are interested, visit our website at Steptoe.com/careers.

Download the 207th Episode (mp3).

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

Direct download: TheCyberlawPodcast-207.mp3
Category:general -- posted at: 8:14pm EST

Our interview features an excellent and mostly grounded exploration of how artificial intelligence could become a threat as a result of the cybersecurity arms race. Maury Shenk does much of the interviewing in London. He talks to Miles Brundage, AI Policy Research Fellow at the Future of Humanity Institute at Oxford and Shahar Avin of the Centre for the Study of Existential Risk and Research Associate at Cambridge. They are principal authors of a paper titled “The Malicious Use of Artificial Intelligence: Forecasting, Prevention and Mitigation.” The discussion was mostly grounded, as I said, but I did manage to work in a reference to the all-too-plausible threat of a hacking, bargaining AI sent by aliens from other star systems.

In the news roundup, semi-regular contributor Gus Hurwitz does a post-mortem on the oral argument in the Microsoft-Ireland case. Maury notes that Google has issued its most detailed report yet on how it’s implementing the right to be forgotten. My takeaway: Apart from censoring media in their own countries, everyone’s favorite censorship targets seem to be U.S. sites. I am not comforted that 90 percent of the censorship stays home, since the rest of it seems aimed at keeping true facts from, well, me.

Gus evaluates the latest Securities and Exchange Commission cybersecurity guidance. Bottom line: no surprises, but a good thing nonetheless. I do a quick recap of the CFIUS butcher’s bill for Chinese deals. It’s every bit as ugly as you’d expect. The Xcerra and Cogint deals have collapsed over chip and personal data worries. The Genworth deal is on the bubble. And CFIUS is taking unprecedented action to intervene in the Qualcomm-Broadcom proxy fight.

A new contributor, Megan Reiss of the R Street Institute, unpacks a couple of new security industry reports covering the emergence of false flags at the Olympics and the increasingly blurred line between criminal and state cyberespionage.

Maury covers the latest EU effort to wrongfoot Big Tech over scrubbing terrorist content. And I try to broaden the point, noting that the idea of a tech “platform” immunity has begun to fray even in the US, the land of its birth.

For those listeners afraid to traverse the feverswamps of conservative media, I bring back a story that shows why the loss of Big Tech platform immunity is shaping up as a bipartisan issue. Would you believe that CNN has bought an industrial washing machine so that it can spin stories more efficiently before airing them?  Do you need Snopes.com to tell you that’s satire? Does anyone need an anonymous Big Tech finger-wagger to tell you it’s fake news and threaten the site with penalties for repeat offenses? If not, you can see the right is uncomfortable with Big Tech as media gatekeeper.

Finally, as a bit of comic relief, last week Edward Snowden took to Twitter to criticize Apple for posing as a protector of privacy while actually cozying up to a dictatorship. Really. You can’t make this stuff up.

As always The Cyberlaw Podcast is open to feedback.  Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

The Cyberlaw Podcast is thinking of hiring a part-time intern for our Washington, DC offices. If you are interested, visit our website in the next week or so at Steptoe.com/careers.

Download the 206th Episode (mp3).

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

Direct download: TheCyberlawPodcast-206.mp3
Category:general -- posted at: 9:16pm EST

Today’s news roundup begins with Maury Shenk and Brian Egan offering their views about the Supreme Court oral argument in the Microsoft-Ireland case. We highlight some of the questions that may tip the Justices’ hand.

Brian and I dig into the Democrats reply memo on the Carter Page FISA applications. I’m mostly unshocked by the outcome of the dueling memos, though I find one sentence of the application utterly implausible. I also foresee a possible merging of the Clinton-Obama Trump-smearing scandal with the Trump-Russia collusion scandal—call it the scandularity!

In other Russia news, the Justice Department is standing up a task force on all things cyberJim Lewis and I disagree about whether Russian hacking of the electoral infrastructure is likely to be a serious problem in 2018. We agree that the Twitter bot war on the American body politic will continue, since it seems to be a pretty cheap hobby for Putin’s favorite supplier of catered meals. Indeed, he seems to have gotten into the business as a way of squelching online protests that his school lunches were lousy. I suggest that Michelle Obama probably wishes she’d heard about that tactic sooner.

Google has announced an Advanced Protection program for people who think they may be high value targets for government cyberespionage. In a Cyberlaw Podcast first, I offer a product review. Short version: I’m still using it, despite some flaws in what looks like a beta program, but as a supply chain buff, I can’t help wondering who the hell Feitian Technologies is and what ties they have to the Chinese government.

March 1 is D-Day for Apple moving the crypto keys for Chinese iPhones' cloud data to China.

And Keeper continues to pursue its misguided libel suit against Ars Technica. Ars Technica’s answering brief is here. While security researchers have been wasting their time on politically correct whining about the Computer Fraud and Abuse Act, libel suits are turning into far more effective tools for chilling security research.

Finally, for fans of the podcast in the Washington area, Steptoe is thinking of hiring a part-time intern to handle much of the organizational work associated with the podcast. If you’re interested, keep an eye on Steptoe.com/careers, which is where we’ll post the position if this idea bears fruit.

As always The Cyberlaw Podcast is open to feedback.  Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 205th Episode (mp3).

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

Direct download: TheCyberlawPodcast-205.mp3
Category:general -- posted at: 7:51pm EST

In our 204th episode of The Cyberlaw Podcast, the team bumbles forward without Stewart Baker, who is spending the week racing his offspring down mountain slopes somewhere in Utah. Brian Egan and Jamil Jaffer begin by covering a few implications of Special Counsel Robert Mueller’s indictment from Friday—the legal theories of the case and what the indictment does and doesn’t cover—as well as the follow-on false statement indictment against a former associate of a major law firm. In an amazing convergence of viewpoints, everyone, from Presidents Obama and Trump to Brian and Jamil—agrees that Russia appears to be winning, and the U.S. is losing, on the topic of interference with U.S. elections.

At the same time, the state secretaries of state gathered in Washington last week to discuss cybersecurity and U.S. elections—coming in the face of a fairly damning report published by the Center forAmerican Progress on shortcomings in U.S. election-related cyber defenses. In light of these threats, we ponder whether a return to the old paper ballots, or even the  “mail-only” approach that is operative in a few states, is better than an electronic ballot.

In other Russia-related news, Kaspersky turned to (literally) one of the oldest pages in the book—the Bill of Attainder clause in the U.S. Constitution—in suing to block the application of a provision in the NDAA that prohibits federal agencies from using Kaspersky products. Jamil posits that the case seems less frivolous than may appear at first blush, while Brian muses about the history of Bill of Attainder litigation in the United States.

Finally, Jamil and Brian discuss the U.S. and U.K. decision to attribute the NotPetya attack to Russia and the continued trend in the Obama and Trump Administrations to publicly identify perpetrators of state-sponsored cyber attacks (along with the risks inherent in this approach). Notwithstanding the NotPetya attribution, as well as a recent White House report on the increased economic costs of cyberattacks and Congressional hearings on data breaches, we explain why we believe it to be unlikely that Congress will pass federal data breach/data notification legislation any time soon.

As always The Cyberlaw Podcast is open to feedback.  Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 204th Episode (mp3).

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Direct download: TheCyberlawPodcast-204.mp3
Category:general -- posted at: 6:43pm EST

This episode consists of Jamil Jaffer and me interviewing Glenn Gerstell, the general counsel of the National Security Agency. Glenn explains what it was like on the inside of the effort to reauthorize section 702 of the Foreign Intelligence Surveillance Act. Jamil and I ask him whether the Foreign Intelligence Surveillance Court has the authority to deal with material omissions in FISA applications, and he actually answers. Glenn also touches on how it feels to discover that data subject to a judicial retention order has been inadvertently deleted, his secret exercise regime, his future plans, and how the United States should respond to the cybersecurity crisis.

Download the 203rd Episode (mp3).

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

Direct download: TheCyberlawPodcast-203.mp3
Category:general -- posted at: 5:09pm EST

Cyberlaw Podcast alumnus Marten Mickos was called before the Senate commerce committee to testify about HackerOne’s bug bounty program. But the unhappy star of the hearings was Uber, which was heavily criticized for having paid out a large bonus under cloudy circumstances. Sen. Richard Blumenthal and others on the Hill treated the payment as more ransom than bounty and pilloried Uber for not disclosing what they called a breach. Even Uber, under new management, was critical of its performance.

As the only cyberlaw podcast with a Davos correspondent, we ask Alan Cohn to give highlights of the event from a cybersecurity point of view. I bring the color commentary and snark.

With the Microsoft Ireland case heading to argument, the Justice Department and Big Tech are hoping to head the court off with a legislative solution. Jamil Jaffer explains what the CLOUD Act will do. I point out who’s missing from the Grand Coalition and question whether Big Privacy has the clout to stop the act.

Fancy Bear hackers seeking high-tech weapons data from U.S. defense contractors get lucky—up to 40% of their phishing links strike paydirt. Michael Mutek explains what this likely means for the Defense Department—more regulation, probably. Whether more regs and more compliance will produce more security is the question no one can answer.

A cyber-diplomacy office is back from the dead, sort of: Secretary of State Rex Tillerson now says he’ll create a bureau for cyberspace headed by an assistant secretary. And, as Jamil explains, the fight switches to which undersecretary will oversee the office.

Nick Weaver and Jamil comment on the news that the Justice Department has pulled in an impressive haul of cyber-fraudsters, bookended by doubts whether any hackers can ever be extradited from places like the UK and Ireland. Because, face it, how many can’t claim to be on the spectrum?

I close with a tribute to John Perry Barlow, who died last week. If you wanted to know how many women would fall for a combination Grateful Dead lyricist, technologist, and cowboy, John could tell you. Exactly.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 202nd Episode (mp3).

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

Direct download: TheCyberlawPodcast-202.mp3
Category:general -- posted at: 2:13pm EST

The crypto wars return to The Cyberlaw Podcast in episode 201, as I interview Susan Landau about her new book on the subject, ‘Listening In: Cybersecurity in an Insecure Age.’ Susan and I have been debating each other for decades now, and this interview is no exception.

In the news roundup, Brian Egan and Nick Weaver join me for the inevitable mastication of the Nunes memo. (My take: The one clear scandal here is the way Glenn Simpson and Chris Steele treated the U.S. national security apparatus, including the national security press, as just another agency to be lobbied – and the success they had in milking it for partisan advantage and private profit.)

Meanwhile, if you needed a reminder of just how enthusiastically and ham-handedly China conducts its espionage, just ask the African Union, whose Chinese-built headquarters is pwned from top to bottom.

Brian lays out a significant Ninth Circuit Anti-Terrorism Act case absolving Twitter of liability for providing “material assistance” to ISIS by requiring a more direct relationship between Twitter’s acts and the harm suffered by the private plaintiffs. Not a surprise, but a relief for Silicon Valley.

Nick fulminates about the security threat that a sophisticated recent malvertising campaign poses and wonders when enterprises will start requiring ad-blockers on corporate internet software. In a related story, we wonder how much incentive Twitter really has to kill off its armies of fake followers.

Are the Dutch paying the price for punching above their weight in the cyberespionage game? And did American leaks kill their success? All we can do is speculate, unfortunately.

You know you’ve missed This Week in Sex Toy Security, so we bring it back to cover yet another internet-connected vibrator company trying to shake off a privacy class action. 

Finally, as a sign that we’ve finally reached peak cybersecurity and peak privacy, both topics are ending up on the agendas of international trade negotiators. The EU says its privacy rules are untouchable in negotiations (although other countries’ overly protectionist data flow policies are fair game) and the NAFTA negotiators have reportedly agreed to add to NAFTA cyber security “principles” based on the NIST Cyber Security Framework.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 201st Episode (mp3).

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Direct download: TheCyberlawPodcast-201.mp3
Category:general -- posted at: 11:51am EST

Whether they call it the fitbit or the “Ohsh*t!bit,” governments are learning that the exercise internet of things is giving away their geospatial secrets at a rapid clip. Nick Weaver walks us through what most in the U.S. would call a security disaster—and how it could become an intelligence bonanza. As an example of what can be done, Jeffrey Lewis highlights Taiwan's secret cruise missile command center.

Of course, as soon as authoritarian governments learn to use fitbits to oppress their people, we can expect the European Union and the Wassenaar export control group to slap export controls on them.  Meredith Rathbone reports on the effort to persuade Europe and Wassenaar not to throw the security industry out with the intrusion software. Turns out that progress is being made on both fronts.

Nick and I talk through the latest stories on Russian cyberspying. Meduza and Buzzfeed have a persuasive and dispiriting story about how Eugene Kaspersky might have been forced to cooperate with the Russian FSB. Looking at questions being raised about U.S. firms allowing the Russians to inspect their source code, we conclude that Balkanization of cybersecurity products is a near certainty, with the only question being how many markets there will be.

Speaking of Russia, the Dutch, not prominent among hacking intelligence agencies until now, have apparently counted cybercoup on the Russians.

Meredith and I dig into the latest round in the European Court of Justice between Max Schrems and Facebook. We call it a draw, with special props to Facebook for creativity in arguing that Schrems is no longer a consumer because he’s obviously turned suing Facebook into a profession.

And, in an overdue event, jackpotting coming to an ATM near you.

Finally, in the interview, we talk to Tim Maurer, co-director of the Cyber Policy Initiative and author of the new book, “Cyber Mercenaries: The State, Hackers, and Power.” Tim tells us the hidden story behind his book’s title and then jumps into a fascinating comparative study of how different governments try (or don’t try) to control the hackers they recruit, because it turns out that they all recruit hackers, just in very different ways. Tim points out an increasing fad for having hackers from one country move to another country to ply their trade. (North Koreans to China; Chinese to Africa) and the additional deterrence options this offers the U.S. government.

As always The Cyberlaw Podcast is open to feedback.  Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 200th Episode (mp3).

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Direct download: TheCyberlawPodcast-200.mp3
Category:general -- posted at: 8:10am EST

In this guestless episode, Michael Vatis, Markham Erickson, and Nick Weaver join me to round up the news. I explore the final results of the intense jockeying that led to passage of S. 139, which gave Section 702 of Foreign Intelligence Surveillance Act a new lease on life. The administration did well, weathering the president’s tweets, providing a warrant process for backend searches that will likely be used once a year if that, and—almost without anyone noticing—pulling the unmasking reform provisions from the bill and substituting an Office of the Director of National Intelligence rule. My guess? This was a tactic to make it easier for Dems to support the bill; if so, it worked.

And just in time, as the days after passage brought new whiffs of scandal, from the four-page House Republican memo alleging improprieties in the FBI’s FISA application to wiretap a Trump campaign hanger-on to two cases in which the FBI and NSA destroyed evidence they were supposed to be preserving. Michael Vatis and I cross sword over whether the FISA abuse memo is worth taking seriously or just partisan flak.

Nick and I delve into the gigabytes of hacked data mislaid by another player in the phone hacking game—Lebanese intelligence. Nick wonders whether the data obtained Electronic Frontier Foundation and Lookout violated the Computer Fraud and Abuse Act. I don’t.

The first known death by SWATting has yielded charges; the egregious SWATter for hire, SWauTistic, has been charged with involuntary manslaughter.

Almost as scary is the news that electric system malware is getting remarkably sophisticated, and common.

The Supreme Court will hear argument in the Microsoft Ireland case next month, and there are dozens of amici briefs, including one by Michael Vatis, who lays out his direct appeal to Justice Neil Gorsuch’s property-based view of the fourth amendment.

Matt Green (and Nick Weaver) have some questions for Apple about its moving China cloud data to a third party Chinese cloud provider. I’ve got one too. If treating Taiwan as a separate country from China leads to humiliating penalties for Western companies, does that mean Apple can’t store Taiwanese and Hong Kong users outside China?

And, for once on the podcast, a sweet life-long love story, spelled out cryptographically.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 199th Episode (mp3).

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Direct download: TheCyberlawPodcast-199_1.mp3
Category:general -- posted at: 8:21am EST

It turns out that the most interesting policy story about Kaspersky software isn’t why the administration banned its products from government use; it’s why the last administration didn’t. Shane Harris is our guest for the podcast, delving into the law and politics of the Kaspersky ban. Along the way, I ask why the Foreign Sovereign Immunities Act, which allows suits against foreign governments for some torts committed in the United States, shouldn’t allow suits against foreign governments that hack computers located in the United States.

In the news, the House comfortably adopts a bill to reauthorized 702 surveillance; the Senate is expected to act today as well. While the House bill makes some changes to the law, it endorses the most moderate of the reform proposals.

In case you haven’t heard, Apple is handing off its iCloud operations to a local cloud storage company – with none of the histrionic civil liberties posturing the company displays in the United States. Whose data is being transferred to the tender mercies of Chinese authorities? Who knows? Not Apple, which can’t even send out notices to its customers without getting confused about who’s covered by the new policy.

It’s a “three-peat” for state authority to make online companies collect sales tax from their customers. The Supreme Court has agreed to reconsider a dormant commerce clause doctrine that it has already affirmed twice.

I apologize to Uber for snarking on their “bounty” payment of $100,000 to a hacker who exposes a serious security flaw and gained access to large amounts of personal data. A good New York Times article demonstrates that the decision to pay up was at least plausibly justified. But as if to demonstrate why the company never gets the benefit of the doubt, Bloomberg reports on Uber’s latest scofflaw-ware scandal. Luckily for journalists everywhere, Uber continues to adopt colorfully damaging nicknames for its scofflaware. In this case their product locked or deleted data sought by local law enforcement with the touch of a panic button. It was named, of course, after Sigourney Weaver’s character, Ripley, who declared that the only way to deal with an alien-infested installation was to “nuke it from orbit.”

Sheila Jackson-Lee gets an admiring mention for winning House passage of a cyber vulnerability disclosure bill that is probably nuanced enough to be adopted by the Senate as well.

And Deputy Attorney General Rosenstein makes a short pitch for “responsible” encryption that actually manages to move the debate forward a step.

Talk about 21st century warfare. Russia is claiming it fought off swarms of drones with cyberweapons. As Nick Weaver points out, that’s just the beginning.

Brian assesses the state of CFIUS reform legislation and the claim that Sen. Cornyn’s bill would result in CFIUS’s regulation of technology transfers that would be better addressed through export controls.

Finally, having already critiqued Apple and Uber, I feel obliged to offer equal time to Twitter, which remarkably can’t even identify advertisements that invite users to log on to fake Twitter sites and steal their credentials. If you want to understand the worst of Silicon Valley, I argue, you shouldn’t look to the big rich companies; it’s the struggling would-be unicorns who show what the Valley really cares about. And security ain’t it. Speaking of which, where is that Ad Transparency Center that Twitter promised any day now back in the fall of 2017?

 

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 198th Episode (mp3).

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

 

Direct download: TheCyberlawPodcast-198.mp3
Category:general -- posted at: 9:50pm EST

While the U.S. was transfixed by posturing over the Trump presidency, China has been building the future. Chances are you’ll find one part of that future–social credit scoring–both appalling in principle and irresistible in practice. That at least is the lesson I draw from our interview of Mara Hvistendahl, National Fellow at New America and author of the definitive article on the allure, defects and mechanics of China’s emerging social credit system.

In the news roundup, Nick Weaver dives deep on the Spectre and Meltdown security vulnerabilities while I try to draw policy and litigation implications from the debacle. TL;DR -this is bad, but the class actions will settle for pennies. Oh, and xkcd has all you need to know.

I note that U.S. Customs and Border Protection under Trump has imposed new limitations on border searches of electronic devices. So naturally the press is all “Trump has stepped up border searches aggressively.” No good deed unpunished, as they say.

Maury Shenk explains President Emmanuel Macron’s latest plans to regulate cyberspace in the name of fighting Russian electoral interference and fake news. The Germans, meanwhile, have begun implementing their plan to fight hate speech on the internet. Predictably, it looks as though hate speech is winning.

In the litigation outrage of the month, a company called Keeper, a password manager developer, got caught distributing software with a security flaw. So they did what any security-conscious company would–they sued the website that publicized the flaw for libel. It’s a crappy suit, and we should all hope they end up assessed with costs and fees. But the real question is this: Google found and disclosed the flaw, while Microsoft distributed Keeper to its users. When will they file as amici to say that no company with a mature security model files STFU libel suits against people who point out legitimate security problems? TL;DR–Keeper: Loser.

Finally, Hal Martin pleads guilty to one of twenty-plus counts and takes a ten-year sentence. So far, so ordinary in the world of plea bargaining. But as Nick points out, this wasn’t a bargain. Martin can still be tried and sentenced on all the other counts. And it effectively stipulates the maximum sentence for the one count he’s pleading guilty to. There must be a strategy here, but we can’t say for sure what it is.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 197th Episode (mp3).

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

Direct download: TheCyberlawPodcast-197.mp3
Category:general -- posted at: 4:51pm EST

In this episode, I interview Elsa Kania, author of a Center for a New American Security report on China’s plan for military uses of artificial intelligence—a plan that seems to have been accelerated by the asymmetric impact of AlphaGo on the other side of the Pacific.

In the news, Brian Egan notes that China’s perspective on “sovereignty in cyberspace” was further elaborated at China’s World Internet Conference, and I point out that China continues its “two steps forward, one step back” process of bringing U.S. companies to heel on security issues.

Nick Weaver explains that the U.S. financial institutions’ “project doomsday” could just as easily be cast as “fire hydrant standardization.” It could be, but it won’t, at least not by headline writers.

Nick also calls out Apple for failing to follow U.S. law in responding to pen/trap and wiretap orders.

I take a victory lap, as the director of national intelligence promises to apply the Gates procedures to unmasking of transition officials. As recommended by me (well, and the House intelligence committee). No need to call them the Baker procedures, though, guys.

Bleeping Computer says Germany is planting backdoors into modern devices. Maybe so, I offer, but whether that includes encryption is not at all clear. 

Finally, Nick digs into the remarkable work that Citizen Lab and Bill Marczak continue to do on authoritarian government hacking. He says, with evidence, that efforts to control sales to untrustworthy governments are actually working.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Subscribe to The Cyberlaw Podcast here.  We are also on iTunesPocket Casts, and Google Play (available for Android and Google Chrome)!

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

Direct download: TheCyberlawPodcast-196.mp3
Category:general -- posted at: 8:04am EST

Episode 195 features an interview with Susan Hennessey of Lawfare and Andrew McCarthy of the National Review. They walk us through the “unmasking” of US identities in intelligence reports—one of the most divisive partisan issues likely to come up in the re-enactment of Section 702 of FISA. I bask momentarily in the glow of being cast as a civil liberties extremist. And Thidwick the Big-Hearted Moose offers insights into 702 reform.

In the news roundup, I try to count votes after the Supreme Court argument in Carpenter v. United States. I count at least four likely votes to require a warrant for cell phone location data and only two likely votes for the United States (and the preservation of the third party doctrine). The other justices didn’t exactly wear their votes on their sleeve, but the smart money favors a whole new ballgame for criminal discovery. The court’s biggest problem will be finding a rationale that doesn’t open up decades of litigation. Justice Gorsuch distinguishes himself with a rationale that is creative, libertarian-conservative, and, well, cockamamie.

Phil West provides the tech angle on the biggest Congressional news—tax reform and what it means for Silicon Valley

Nick Weaver and Jamil Jaffer walk us through the Justice Department’s impressive haul of indictments and guilty pleas in the world of cyberespionage. Yet another NSA exploit hoarder has been caught and pled guilty. And for the first time, Justice has the goods on cyberespionage by Boyusec, a Chinese “security” firm tied to China’s Ministry of State Security. The company has conveniently gone out of business after being outed, but the indictment does raise the question whether the US-China agreement on commercial cyberespionage was really just about which Chinese cyberspies would be allowed to steal U.S. commercial secrets.

There’s yet another flashpoint in China-US cyber relations—drones. A DHS analyst has publicly trashed the dominant drone maker, China’s DJI, as providing the Chinese government with access to data collected by its drones and as targeting sensitive US infrastructure for its sales. The DJI response is not exactly nuanced: A DJI spokesman called the report “insane.”

Meanwhile, Uber's problems seem neverending. The latest disaster focuses on the company’s use of quick-to-vanish messaging services like Wickr and Telegram. Such services are popular among “Technorati” who like to fancy themselves as targets of government surveillance. Problem is, when they are under surveillance, or just a discovery obligation, the use of evanescent messaging is often seen as a sign of guilt. This messaging movement could turn out to be extremely costly—first for Uber and then for Silicon Valley in general. I'm not sure that putting employees on the honor system not to use those services for company business is going to be enough.

Apple was in the news for giving up root access to anyone who insisted. And its attempt to rush out a patch wins the Equifax Prize for Breach Fixes That Create New Security Problems. Perhaps the security team was off providing support to Tim Cook for his keynote speech at the celebration of the Chinese internet (“We are proud to have worked alongside many of our partners in China to help build a community that will join a common future in cyberspace.”) Nick Weaver suggests as a result that we take a closer look at Facetime intercept capability.

Finally, it’s down to the wire on Section 702. Jamil Jaffer, Susan Hennessey and our other commentators think we may escape without too much damage to the intelligence program.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 195th Episode (mp3).

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

Direct download: TheCyberlawPodcast-195.mp3
Category:general -- posted at: 11:09am EST

Our interview this week is with Rob Reid, author of “After On” and “Year Zero,” two books that manage to translate serious technology nightmares into science fiction romps. We cover a lot of ground: synbio and giving eighth graders the tools for mass human extinction, the possibility that artificial intelligence (AI) will achieve takeoff and begin to act counter to humanity’s interests in a matter of hours. Along the way, we consider the possibility that the first AI will arise from a social media behemoth and will devote its exponential power to maximizing human hookups.

In the news, we explore the massive public relations disaster that is the Uber data breach and reach the surprising conclusion that the whole thing may turn out worse in the media than in the courts. Except in the EU, Maury Shenk reminds me. Europe just hates Uber viscerally. So much so that Jim Lewis suggests the company’s EU subsidiary will soon have to be renamed Unter.

Actually, it’s not just Uber that the EU hates. It’s all things technological, at least to judge by the European Parliament’s latest plan to use export controls to cripple technology companies whose products can be misused by authoritarian governments.

I note the release of the ODNI’s report on the intelligence community’s "masking" of U.S. identities in intel reports. We talk about the temptation to weaponized unmasking during transitions, and I ask why the “Gates procedures” that provide special protection for unmasking of Congressional identities shouldn’t also be used to protect Presidential transition teams.

Jim and I discuss Russia’s imposition of constraints on Radio Free Europe that match the new restrictions on RT in the United States. Jim and I struggle toward a Universal Theory of Putin as Overrated Global Troll.

Remember those Chinese "security" cameras deployed by US agencies that we covered in the last episode? Yeah, it's worse than you thought: the Chinese are getting close to identifying everyone caught on camera using gait and facial recognition.

I note that Sen. Ron Wyden (D-OR) has another campaign underway to imply that the Justice Department is imposing decryption assistance requirements under FISA without judicial review. In fact, if there is such an effort, the company on the receiving end already has a judicial remedy. And Maury explains that the head of Germany's new cybersecurity agency is joining the German government chorus arguing for "hack back," but only by the German government.

My candidate for “Dumbest Public Policy Battle of the Season”: The complaint that someone faked a bunch of meaningless, content-free comments on net neutrality. The problem is really the idea that the policy debate should be influenced by counting votes in the World’s Skeeviest Online Poll, an idea that seems to have sparked a kind of bot arms race between supporters and opponents of the FCC’s policy.

And my candidate for Coolest Technology Story of the Season: Feeding graphene to spiders and discovering that it greatly strengthens their webs. Every fifteen-year-old science fair participant should take heart: It turns out that with great quantities of graphene comes great responsibility.

As always, The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 194th Episode (mp3).

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

Direct download: TheCyberlawPodcast-194.mp3
Category:general -- posted at: 7:27pm EST

We celebrate the holiday season by interviewing David Ignatius, Columnist and Associate Editor at The Washington Post and the author of multiple spy thrillers, including his most recent, "The Quantum Spy." David and I discuss themes from the book, from quantum computing to ethnic and gender tensions at the Agency, while managing to avoid spoilers. It’s a fun and insightful work.

 

Steptoe partner Stewart Baker with David Ignatius.

In the news, I flag Twitter’s weird journey from the free speech wing of the free speech party to the censorship wing of the Censor’s Party. Twitter is now revoking the verification checks for people whose speech it disapproves of. It’s even de-checking people based on its assessment of their off-line conduct. So maybe that should be the Stasi wing of the Censor’s Party. And, not surprisingly, given Silicon Valley’s steep leftward-tilt, the censorship seems to fall far more harshly on the right than on less PC targets.

Markham Erickson and I treat Twitter’s wobbly stance as a symptom of the breakdown of the Magaziner Consensus, as both left and right for their own reasons come to view Big Tech with suspicion. Markham has shrewd observations about what it all means for the (questionable) future of social media’s section 230 immunity.

We dive into a surprising new analysis of China’s “50c Army.” Turns out that the Chinese government strategy for flooding the internet is 180 degrees off from Russia’s. Instead of a Trollfest, Chinese government-funded social media is saccharine sweet. Cheerleading and changing the subject are what its army does best.

Markham, Brian Egan, and I give broadly positive reviews to the US government’s recently announced Vulnerability Equities Process. And, in a correction to those who’ve said that other countries don’t have such a process, I point to evidence that China has one–in which all the equities seem to point to exploit, exploit, exploit.

All of which ought to turn the story of US agencies using Chinese “security” cameras from disquieting to positively frightening. Speaking of which, the Chinese company that made your drone has provided a case study on how not to do a bug bounty program. Read it and weep.

On a lighter note, we talk backflipping robots and a surprising peril of traveling with your family this holiday season–thumbprint phone security failure followed by titanic spousal air rage. Where is Tim Cook’s privacy schtick when we really need it?

Download the 193rd Episode (mp3).

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics 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: TheCyberlawPodcast-193.mp3
Category:general -- posted at: 5:23pm EST

With the Texas church shooting having put encryption back on the front burner, I claim that Apple is becoming the FBI's crazy ex-girlfriend in Silicon Valley—and offer the tapes to prove it. When Nick Weaver rises to Apple's defense, I point out that Apple responded to a Chinese government man-in-the-middle attack on iCloud users with spineless obfuscation rather than a brave defense of user privacy. Nick asks for a citation. Here it is: https://support.apple.com/en-us/HT203126 (Careful:  don't click without a chiropractor standing by.)

Nick provides actual news to supplement the New York Times' largely news-free front page storyabout leak and mole fears at NSA.

I gloat, briefly, over hackback's new respectability, as the Active Cyber Defense Certainty Act acquires new cosponsors, including Trey Gowdy, and hacking back acquires new respectability. But not everywhere.

Michael Sulmeyer finally gets a word in edgewise as the conversation shifts to the National Defense Authorization Act. He discusses the Modernizing Government Technology Act, the growing Armed Services Committee oversight of cyberoperations, and the decision to lift—and perhaps separate—Cyber Command from National Security Agency. I take issue with any decision that requires that a three-star NSA director to argue intelligence equities with a four-star combatant commander

We end with Michael Sulmeyer and I walking through the challenges for the Pentagon in deterring cyberattacks. We both end up expressing skepticism about the current path. 

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 192nd Episode (mp3).

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

Direct download: TheCyberlawPodcast-192.mp3
Category:general -- posted at: 1:48pm EST

Episode 191 is our long-awaited election security podcast before a live, and lively, audience. Our panel consists of Chris Krebs, formerly of Microsoft and now the top cybersecurity official at DHS (with the longest title in the federal government as proof), and Ed Felten, formerly the deputy chief technology officer of the federal government and currently Princeton professor focused on cybersecurity and policy. We walk through the many stages of election machinery and the many ways that digitizing those stages has introduced new insecurities into our election results.

When all is said and done, however, the entire panel ends up more or less in one place: Election security is not to be taken for granted; it will be hard to achieve, but it’s not impossible, or even unaffordable. With sufficient will and focus, and perhaps a touch of Ned Ludd, we may be able to overcome the risk of foreign hackers interfering in our elections. At least outside of New Jersey.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 191st Episode (mp3).

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

Direct download: TheCyberlawPodcast-191.mp3
Category:general -- posted at: 9:51am EST

In our 190th episode, Stewart Baker has a chance to interview Sen. Sheldon Whitehouse (D-RI), who has a long history of engagement with technology and security issues. In this episode, we spend a remarkably detailed half-hour with him, covering the cybersecurity waterfront, from the FBI’s problems accessing the Texas church shooter’s phone, and what Silicon Valley should do about that, to Vladimir Putin’s electoral adventurism and how to combat it. Along the way, we touch (skeptically) on the NIST Cybersecurity Framework and more enthusiastically on allowing private citizens to leave their networks to track the hackers who’ve attacked them.  Plus: botnet cures, praise for Microsoft, a cybersecurity inspector general (or, maybe, bug bounties), DHS’s role in civilian cybersecurity, and how much bigger Rhode Island really is at low tide!

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 190th Episode (mp3).

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

Direct download: TheCyberlawPodcast-190.mp3
Category:general -- posted at: 1:34pm EST

In our 189th episode Stewart Baker has a chance to interview United States Representative Tom Graves, co-sponsor of the Active Cyber Defense Certainty (ACDC) Act, which allows those whose networks are under persistent attack to leave their network to conduct investigative action.  Representative Graves offers a measured but deeply felt defense of the proposal and is optimistic about its reception.  And, with the hard-hitting investigative approach The Cyberlaw Podcast is known for, I ask the tough question:  “Is this bill a tribute to AC/DC – and if so, which song?”  (Hint in the title of the blog post.)

Mark your calendars for November 7th when we will gather for a live taping of a special episode on Election Cybersecurity at our Dupont Circle offices here in DC. To register please visit the Events page of our website at steptoe.com.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 189th Episode (mp3).

Subscribe to The Cyberlaw Podcast here. We are also on iTunes, Pocket Casts, and Google Play (available for Android and Google Chrome)!

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

Direct download: TheCyberlawPodcast-189.mp3
Category:general -- posted at: 2:38pm EST

In this episode, Brian Egan and I deconstruct the endlessly proliferating “FISA 702 Reform” bills, from the irresponsible House Judiciary bill to the “I’ll see your irresponsible and raise you crazy” bipartisan extremist bill beloved of Sens. Wyden and Paul (and talk about truth in advertising: what else would you call a bill that takes us back to the pre-9/11 status quo but S.1997?). Even the relatively restrained Senate Intelligence bill takes fire for its, ahem, “creative” approach to FBI searches of 702 data. Brian does not share my distaste for all of the options, but agrees that the cornucopia of 702 proposals makes it even more unlikely that anything other than a straight-up short-term reauthorization can be passed before the end of the year.

In other legislative news, CFIUS reform is also in the air, and Sen. Cornyn's carefully scripted rollout has begun. In her podcast debut, Alexis Early unpacks this complex bill. Need a one-word explanation? China. The bill tries to block all of the avenues China is believed to have traveled in its pursuit of US technology over the last decade. We also discuss how the bill would remove the veneer of “voluntariness” from at least part of the CFIUS process, which could impact a range of filers – particularly US technology companies seeking foreign investment.

Meanwhile, if you’re looking for confirmation that privacy is really just another word for protecting privilege, Twitter is apparently eager to provide it. Even as criticism and warnings about Russian misuse of Twitter to divide Americans and “diss” Hillary Clinton were rolling in last summer, the Russians were busily deleting their phony posts, and Twitter was right there to help. The company told even independent researchers who had saved Russian posts that the researchers had to delete any post that Twitter was deleting (which seems to be anything that the Russians deleted). This of course made it hard to criticize Twitter’s policies on foreign government trolling, since the evidence was gone, but the justification that Twitter offered was, naturally, privacy. Maybe the company’s privacy policy should come with a slogan: “Privacy: Good for you. Better for us.”

Of course, Twitter claims that it has to force the deletion of inconvenient tweets because of EU data protection policy. And indeed, European exceptionalism on the privacy front was front and center last week, with the European Parliament’s approval of a draft ePrivacy directive that law enforcement will hate, an unfavorable opinion on how many data protection authorities can regulate Facebook (clue: all of them), and an absolutely undecipherable explanation from the Article 29 working party of European restrictions on automated decision-making (my translation: “If you use AI in your business and we don’t like you, you’re toast.”). Maury Shenk provides a less jaundiced summary of these developments.

We do quick hits on Kaspersky’s defense, which looks more like it was designed to embarrass the US than to exonerate the company, on Microsoft’s eagerness to drop its gag order lawsuit in response to a change in DOJ policy, and on the FBI’s claim that encryption is now defeating half of the phone searches it tries to do. 

Our interview is with Chris Painter, the State Department’s top cyber diplomat under President Obama. He offers candid views about the Tillerson reorganization, which pushes his old office deeper into “deep State” (the State bureaucracy). He also assesses what went right and wrong for cyber diplomacy on his watch, and what the US should be doing going forward. Brian Egan referees as Chris and I have what the State Department might call a “frank and candid exchange of views.”

Mark your calendars for November 7th when we will gather for a live taping of a special episode on Election Cybersecurity at our Dupont Circle offices here in DC. To register please visit the Events page of our website at steptoe.com.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 188th Episode (mp3).

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

Direct download: TheCyberlawPodcast-188.mp3
Category:general -- posted at: 4:37pm EST

I had a chance to talk to Tom Bossert, President Trump’s Homeland Security Adviser, on the record, and we’re releasing the conversation as a bonus episode of the Cyberlaw Podcast. The talk ranges from Peggy Noonan’s observations on White House staff work to the vast improvement in the West Wing’s carpeting before turning to our main topic – the looming deadline for renewing authority for FISA section 702. Tom is deeply familiar with the issues in the debate over 702. He stands by the administration’s position that 702 should be renewed without amendment and without a sunset but he discusses with nuance the many legislative proposals for changing the program as well. Finally, we talk about the executive order that unleashed a flood of internal reports on empowering DHS to protect the US government’s systems, measures to protect critical infrastructure, and the administration’s hunt for a new cyberspace deterrence strategy.

Mark your calendars for November 7th when we will gather for a live taping of a special episode on Election Cybersecurity at our Dupont Circle offices here in DC. To register please visit the Events page of our website at steptoe.com.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 187th Episode (mp3).

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

Direct download: TheCyberlawPodcast-187.mp3
Category:general -- posted at: 7:56am EST

Our interview is another in our series on Section 702 reform, featuring Mieke Eoyang of the National Security Program at Third Way and Jamil Jaffer of George Mason University and IronNet Security. They begin with the history of the program but quickly focus on proposals to require warrants for FBI criminal searches of already collected 702 data, which Mieke broadly supports and Jamil broadly opposes. The Las Vegas shooter's case raises the question—are we really going to make the FBI wait for a warrant before checking its own 702 database to see whether Paddock has been in communication with terror groups and what he's been saying? 

In the news roundup, Jim Lewis of the Center for Strategic and International Studies and Brian Egan nerd out with me on the DOD's objections to section 1621(f) of the National Defense Authorization Act. Neither Jim nor Brian finds them persuasive.                 

I give a preview of my plans to celebrate Halloween as a Russian Twitter troll, and Jim predicts that the main fallout from the entirely predictable Russian use of Twitter will be on Silicon Valley, as what I call the Magaziner Consensus, already dying abroad starts to look a little peaked here at home.  

Meanwhile, the North Korean hackers are still robbing banks, semi-successfully. And, remarkably, they're also finding studios even more willing to cave to cyber blackmail than Sony, as it turns out the hackers apparently killed a BBC show they found objectionable. Jim insists that these kinds of attacks tell us more about the calculating rationality of Kim Jong Un than his craziness. And, since Kim's getting away with both, maybe Jim is right.

I riff on the latest in sex toy security, introducing our audience to an entirely new internet vocabulary.

Also, the medical profession seems to be putting its collective head in the sand about medical device security. Jim is sure that liability for producers—and for doctors—will solve that problem before Congress. Knowing the FDA's shaky grasp of the issue, I’m not so sure. 

Finally, Brian reports that the EU's first Privacy Shield report found US data protection practices "adequate" under EU law. He thinks it's because the administration is taking the EU process seriously; I think it's because the EU is taking President Trump seriously—and has decided he's not someone whose adequacy you want to question lightly.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 186th Episode (mp3).

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

Direct download: TheCyberlawPodcast-186.mp3
Category:general -- posted at: 11:23pm EST

This episode features an interview with Mårten Mickos, the CEO of HackerOne. HackerOne administers bug bounty and vulnerability disclosure programs for a host of private companies as well as DOD’s “Hack the Pentagon” program. He explains how such programs work, how companies and agencies typically get started (with “vulnerability disclosure” programs), the legal and other assurances that companies need to provide to ensure participation, and the role that bounty administration firms play – from hacker reputation management to providing a kind of midnight basketball tournament for otherwise at-risk fourteen-year-old boys. (And they are boys, at least 98% of them, an issue we also explore.) Along the way, there’s even unexpected praise for the Justice Department’s Computer Crime Section, which has produced a valuable framework for vulnerability disclosure programs.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 185th Episode (mp3).

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

Direct download: TheCyberlawPodcast-185.mp3
Category:general -- posted at: 8:04pm EST

Today’s news roundup features Shane Harris of the Wall Street Journal, Brian Egan, and Alan Cohn discussing stories that Shane wrote last week. Out of the box, we work through the hall of mirrors that the Kaspersky hacking story has become.

The Russian hacking story is biting more companies than just Kaspersky. Turns out that Twitter deleted all the Russian trolling accounts and tweets when the Russians asked them to. Because privacy! I put in a plug for the rule that privacy always somehow ends up protecting the powerful – in this case Vladimir Putin and, of course, Twitter itself.

We also cover another Wall Street Journal story detailing North Korea’s use of (another) antivirus product to hack South Korea’s military – and US war plans. 

Alan unpacks the Trump Administration’s most detailed statement to date on law enforcement and technology -- Deputy AG Rosenstein’s far-ranging speech on the topic.

Alan and I also touch on the emerging fight over 702 – and the media’s evergreen and credulous “discovery” that the far left and far right are surprisingly close on surveillance issues.

Alan spells out the case for Kirstjen Nielsen as Homeland Security Secretary, along with what some of her detractors are saying.

While Brian lays out the explosive theory behind the latest effort to tag Google and other social media giants with liability for assisting ISIS.

We close with two short hits.

I ask why, if Pornhub’s technology is that good, they’re starting with facial recognition.

And I can’t help noting that, for a while at least, security icon Apple thought that the best password hint was … the password itself! Thanks, Tim Cook! We’ll keep that in mind the next time you argue that the ability to hack every iPhone on the planet should be left with you and not the FBI.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 184th Episode (mp3).

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

Direct download: TheCyberlawPodcast-184.mp3
Category:general -- posted at: 11:49am EST

Richard Danzig, former Navy Secretary and a serious defense and technology thinker, speaks to us about the technology tsunami and what it means for the Pentagon.  Among the risks:  lots more accidents, some of them catastrophic, and “emergent” interactions among systems that no one predicts or prepares for.  He calls for the Department of Defense to spend more time thinking about ways in which our weapons might kill us without any enemy action.  Along the way, we ask the hard questions, including whether Kim Jung Un will use gene therapy to make his people smarter, dumber, or better basketball players.

In our news roundup, the House Judiciary Committee has struck the first blow in the 702 renewal debate. Paul Rosenzweig and I assess its bill and end up concluding that it does less damage to national security than expected, except for the unfortunate decision to sacrifice the possibility of conducting “about” collection.

Meanwhile, a turf fight inside Treasury has gotten vicious, with FinCEN lobbing (and leaking) “intelligence scandal” epithets at its sister Office of Intelligence and Analysis.  Brian Egan doesn’t seem surprised about the fighting, while expressing skepticism about the likelihood of a real scandal. In the words of our President, “Sad!”

Irish courts have unsurprisingly punted on the use of standard contracts clauses to export data to the US, Michael Vatis tells us.  The court has referred the hard issues to the European Court of Justice.

Speaking of sad, a third (or maybe a fourth) NSA staffer has taken Top Secret material home with disastrous results.  Kaspersky’s software seems to have been great at spotting the classified malware on the staffer’s machine. The result, Paul notes, is that the malware ended up in Russian government hands, and Kaspersky’s reputation is toast in the West.  Maybe it’s just a coincidence or maybe Kaspersky has given up wooing the West, but its latest report outs an unknown power that has been “piggybacking” on intrusions aimed at or run by Russian and Chinese hackers.

Finally, Brian discusses USTR’s use of the WTO to put a shot across China’s bow on that nation’s cybersecurity law.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 183rd Episode (mp3).

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

Direct download: TheCyberlawPodcast-183.mp3
Category:general -- posted at: 6:11pm EST

Episode 182 features a panel of experts on attribution of cyberattacks. I moderated the panel at the Georgia Tech 15th Annual Cyber Security Summit in Atlanta on September 27, 2017.  Panel members included Cristin Goodwin of Microsoft, Rob Knake of the Council on Foreign Relations, Hannah Kuchler of the Financial Times, and Kim Zetter, author of a 2014 book on the Stuxnet attack.

It’s a wide-ranging and compelling discussion of how we’re doing in attributing cyber intrusions and what more is needed in the field. Special thanks to Michael Farrell, Co-Director of Georgia Tech’s Institute for Information Security & Privacy (IISP) and the organizer of the Summit, for all the work and assistance that made this episode possible.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 182nd Episode (mp3).

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

Direct download: TheCyberlawPodcast-182.mp3
Category:general -- posted at: 5:38pm EST

Episode 181: Equifax and the Upside of Nation-State Cyberattacks

Was the Equifax breach a nation-state attack? Nick Weaver parses the data, and I explore the surprising upside for Equifax if it was.

Twitter comes to Capitol Hill to talk Russian election interference; it goes home with a flea in its ear and plenty of homework to do. Stephen Heifetz and I ask why the Foreign Agent Registration Act could not be used to discipline nation states' use of social media.

Twitter isn't alone in getting sideways with the government. The Justice Department says that Google is defying court orders on disclosure of data -- while building a system to make compliance impossible.  Nick gives the company a chutzpah award.

Jim Comey is still taking hits from the Hill, months after his departure from public life. Sens. Wyden and Lee are hoping to call him a liar, and they'd like the DNI's help. The good news for Jim Comey is bad news for Section 702, since the attack on Comey is really a way of paving the ground for a major reduction in the kinds of intelligence collection the government can conduct using section 702.

Bet you never thought you'd hear the phrase "Bush-Obama Consensus," but the Trump administration's CFIUS policies are turning "BushObama" into a single word summary of the ancien regime. Stephen Heifetz makes these and other observations in laying out the latest from CFIUS's (2015!) annual report. What can we tell from it?

Finally, Nick and I explore his latest essay viewing the vulnerability equities process through a Vault7 and ShadowBrokers lens: What should the government do when it's pretty sure its critical hacking tools have fallen into enemy hands?

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 181st Episode (mp3).

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

Direct download: SteptoeCyberlawPodcast-181.mp3
Category:general -- posted at: 4:49pm EST

In a delightfully iconoclastic new book, Jeremy Rabkin and John Yoo take the air out of 75 years of inflated claims about the law of war. They do it, not for its own sake, though God knows that would be enough, but as a prelude to discussing how to use the new weapons–robots, space, and cyber–that technology makes possible. Brian Egan and I interview Jeremy Rabkin about these and other aspects of “Striking Power: How Cyber, Robots, and Space Weapons Change the Rules for War."

In the news roundup, cell tower simulators, aka stingrays, take another hit as a divided DC Court of Appeals says warrants are required before they can be used.

Maury Shenk sees good news for industry in the recent meetings between Commissioner Jourova and Secretary Ross; the European Commission is giving every sign of wanting to avoid yet another fight over Privacy Shield, though hotter heads in Europe may yet prevail.

Brian Egan opines on Robert Strayer’s appointment as deputy assistant secretary of state for cyber and international communications and information policy–and the reorganization that his appointment cements for now.

Stewart and Jeremy unpack the implications of the CCleaner attack, and its lessons for advocates of hacking back.

The FTC took a hit–but not a fatal one–from Judge Donato in the D-Link case.

And the OPM breach suits have been dismissed; I conclude that the grounds for dismissal raise questions, but it was, in the end, a mercy killing, since maintaining a class was likely to be impossible.

Julian Assange’s effort to rebrand himself as something other than a Russian stooge spurs skepticism from the panel. As Maury points out, the (only) Russian data leak Wikileaks has posted is more marketing release than a blown whistle.

Embarrassingly, the SEC admits that it was hacked and that the stolen data was likely used for insider trading.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 180th Episode (mp3).

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

Steptoe partner Stewart Baker (right) with Jeremy Rabkin.

Direct download: SteptoeCyberlawPodcast-180.mp3
Category:general -- posted at: 8:46am EST

Our interview is with Jeanette Manfra, DHS’s Assistant Secretary for Cyber Security and Communications. We cover her agency’s binding directive to other civilian agencies to purge Kaspersky software from their systems, and her advice to victims of the Equifax breach (and to doctors who think that Abbott Labs’ heart implants don’t need a security patch because no one has been killed by hackers yet). I also ask how she’s doing at expanding civilian agency security from intrusion prevention to monitoring inside networks – and the future of her agency at DHS.

CFIUS is back in the news as President Trump kills his first deal on national security grounds. Stephen Heifetz explains what he did and what it means for roughly 15 more deals caught in CFIUS’s toils.

For those who are following the 702 Upstream issue from last week’s episode, a bipartisan group of House Judiciary members have come down on Liza Goitein’s side of the debate, saying they’ll abolish upstream collection “about” terrorists. Whether they can sell the moderates of both parties on that, especially in the Senate, remains to be seen.

Jennifer Quinn-Barabanov explains how bad things have gotten for Equifax: a delayed patching process that will be cast as negligent, dozens of class actions, an FTC investigation, multiple Congressional committee hearings, possible SEC inquiries, and the state attorneys general too. I point out that no one has suffered harm from the breach yet and question whether this disaster will look quite so bad in three or four months.

The Trump administration imposes its first cyber attack sanctions, against Iranian hackers. Stephen and I note that three astonishingly different Presidents have managed to pursue cyber policies that are more or less indistinguishable from each other.

I suggest a surprising likely victim of the Russian probe: the effort to enshrine in law the requirement that electronic provider content only be provided in response to a search warrant, not a subpoena. The social media companies that dealt with Russian advertisers have provided less information to the Senate intelligence committee than to Robert Mueller. Why? Because the Senate doesn’t issue search warrants. So if Congress adopts a statutory warrant requirement to get electronic content, it will doom Congressional committees to perennial second-class status in future investigations. I doubt Congress is going to want to do that.

In fact, I predict, Silicon Valley is in for a bad half decade in Washington, as left and right grow increasingly suspicious of the power of social media companies.

Finally, to close out the news on a legal note, Jennifer unpacks two recent and, ahem, “divergent” opinions of the Eighth Circuit on breach lawsuit standing.

Download the 179th Episode (mp3).

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

Direct download: SteptoeCyberlawPodcast-179.mp3
Category:general -- posted at: 8:03am EST

The Cyberlaw Podcast kicks off a series exploring section 702 – the half-US/half-foreign collection program that has proven effective against terrorists while also proving controversial with civil liberties groups.  With the program due to expire on December 31, we’ll examine the surveillance controversies spawned by the program. Today, we look at the “upstream” collection program under section 702.  We talk to Becky Richards, NSA’s Civil Liberties and Privacy and (whew!) Transparency Officer as well as Liza Goitein of the Brennan Center for Justice.

In the news, Equifax is taking a beating both for a massive and serious data breach and for a series of missteps in its mitigation effort.  Michael Vatis lays out the gory details.

Speaking of ugly, the climate for the online ad business is getting a lot worse, or so I predict, as Russia's use of social media ads and trolls gets attention in Washington.

Had enough?  Nope.  Now the European Court of Human Rights is piling on, limiting employers' right to monitor employees.  Maury Shenk explains the law; and I marvel at the court’s ability to take an obligation imposed on governments and turn it into a code of conduct for private employers.

But wait, it gets worse.  Symantec says that a hacker who looks a lot like the Russian government has installed sophisticated hacking tools on the networks that directly control US electric grid systems.  I predict that the Trump administration will do, well, nothing, following an Obama administration tradition in grid hacking cases.

OK, it’s not the power grid, but would you really want hackers to be able to tell your Echo, “Alexa, send me two metric tons of garbanzo beans overnight?”  Now, thanks to what I call the Evil Dolphin attack, they can do exactly that – with you in the room.  Quick, get all the Echos out of Marine World!

OK, here’s a bit of good news, or at least man-bites-dog news.  Maury reports that the European Court of Justice has sent Intel's $1.26 billion monopolization fine back to the European General Court.  Any time a European court doesn’t reach out to arbitrarily smack a US tech company, it’s cause for wonder.

In other news, Michael reports that Lenovo has settled (and pretty cheaply) with the FTC and a batch of states for installing spyware on its laptops.

To follow up on last week’s podcast, Best Buy has dumped Kaspersky software, so the mistrust virus is spreading from government to the private sector.

Finally, Uber, not content with God mode, also invented Hell, a program that fooled Lyft drivers into chasing fake customers.  Now Hell seems to have come for Uber, as it turns out the now-abandoned escapade might have violated the Computer Fraud and Abuse Act and is the subject of an SDNY/FBI probe.

Download the 178th Episode (mp3).

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

Direct download: SteptoeCyberlawPodcast-178_1.mp3
Category:general -- posted at: 9:51am EST

In Episode 177, fresh from hiatus, we try to summarize the most interesting cyber stories to break in August. Paul Rosenzweig kicks things off with the Shunning of Kaspersky. I argue that the most significant–though unsupported–claim about Kaspersky is Sen. Shaheen’s assertion that all of the company’s servers are in Russia. If true, that’s certainly an objective reason not to let Kaspersky install sensors in non-Russian computers. The question that remains is how much due process companies like Kaspersky should get. That’s a question unlikely to go away, as DOD is now comprehensively shunning DJI drones, issuing guidance that sounds a lot like Edward Snowden demanding that users uninstall all DJI apps and remove all batteries and storage media.

Speaking of companies the US government can’t trust, Paul and I note that Apple has lost control of its secure enclave software. At the same time, Apple has pulled VPN apps from the Apple store at the direction of the Chinese government. Tim Cook explains that this makes perfect sense because Chinese law is on the Chinese government’s side but US law was not on the US government’s side. Right. Sounds like Tim is as good at lawyering as he is at coding, or at finding new breakthrough products for that matter.

Alan Cohn offers a potentially groundbreaking IOT security act.

Maury Shenk lays out the future of UK data protection law after Brexit.

And Paul and I look for ways in which DNA malware could be used.

To everyone’s surprise, election hacking is still making news. I use the item to tease our latest plan–an open house Election Day special where a panel of experts debates election security in front of a live Steptoe audience.

Finally, in our long interview, Alan and Maury talk Bitcoin, blockchain, and distributed ledgers with Michael Mainelli, Co-Founder and Chairman of Z/Yen, a think-tank and venture firm in the City of London; Emeritus Professor and Chairman at Gresham College; an alderman of the City of London; and a founder of Long Finance.

Download the 177th Episode (mp3).

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

Direct download: SteptoeCyberlawPodcast-177.mp3
Category:general -- posted at: 5:30pm EST

Everybody’s a critic, and everybody’s a censor, at least if you judge by today’s episode: Maury Shenk tells us the European Court of Justice will soon rule on its authority to censor what Americans read. Markham Erickson discusses the Ninth Circuit decision upholding national security letter gag orders. And Maury says that China is getting impressively good at deleting images it doesn’t like from citizens’ phones in real time.

In other news, Congressional sanctions on Russia look like a done deal; Anthony Rapa explains (contra the NYT) that the sanctions weren’t watered down in the House – and the fuss they’re likely to cause among our European trading partners.

Speaking of sanctions, how long before Putin decides to sanction the extended Trump family by going after their property, either with legal decrees or illegal hacks? The Trump hotels are already prime targets for credit card hacks; adding doxing and bricking to the mix wouldn’t be hard.

In fact, that’s a lesson Hollywood seems to have absorbed. To keep from getting hacked a la Sony, it looks as though other studios are airbrushing Vladimir Putin from their upcoming films.

Meanwhile, Reuters and others report that Silicon Valley’s Big Tech seems to be AWOL in the fight over section 702 renewal. Not necessarily out of patriotism but possibly also because the EU has tried to tie the fate of 702 with the Privacy Shield, which is the agreement that allows for free data flows between the regions.

As antidote, Stephanie Roy describes one profile in corporate courage – Microsoft’s lawsuit against Russia’s GRU (though they don’t of course name the intelligence agency). Microsoft is using trademark rights to take back some of the GRU’s command and control infrastructure.  It may not change the world, but it’s the best use of trademark enforcement in years.

Finally, our guest for the episode is Dave Aitel, Founder and CEO of Immunity, Inc. Dave combines deep cyber security expertise with a willingness to weigh in on policy issues.  A VEP expert (and contrarian), Dave thinks the recent Belfer Center paper on the topic is embarrassingly wrong and will have to be withdrawn. We cover other issues as well, from when a cyberweapon should be condemned as an indiscriminate violation of international humanitarian law to Kaspersky’s defenestration and the wisdom and proper regulation of private sector hacking back.  It’s a great tour of current issues in cybersecurity.

As always the Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 176th Episode (mp3).

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

Direct download: SteptoeCyberlawPodcast-176.mp3
Category:general -- posted at: 6:34pm EST

This episode is dominated by IT procurement news.  And it’s as irresistible as a twelve-car pileup on the Beltway.  We open the news with an exploration of the federal de-listing of Kaspersky Labs, and how seriously government contracts lawyers take such an action (h/t to Michael Mutek for that).

Then, in the interview, Eric Hysen, formerly of the DHS Digital Service, lays out his view of how DHS’s effort to bring agility and speed to big IT contracts came a cropper, with plenty of color commentary from procurement law guru, Michael Mutek.  If you care about reforming federal IT purchasing (and you should), this interview is a cautionary tale.

In other news, as Steptoe summer associate Quentin Johnson lays out, the Knight First Amendment Institute has brought a lawsuit to declare @realDonaldTrump a public forum from which trolls and griefers may never be excluded.  Gus Hurwitz overcomes his inclination to snark and instead treats the claim seriously, which only makes it sound more ridiculous.  Still, I’m looking forward to seeing White House press briefings moved to the Rose Bowl.

Alan Cohn and I note that Booz Allen has come up with the best explanation yet for NotPetya’s weirdly self-defeating ransomware pose.  The purpose wasn’t to cause Shamoon-style destruction or to collect ransom; the goal was to cover tracks left in earlier intrusions.

Meanwhile, Alan Cohn describes a remarkably functional homeland and cyber security White House and DHS process, including Jeanette Manfra’s swift appointment and Rob Joyce’s sober assessment of the value of norms talk.

China continues to crack down on its citizens, and to get cooperation from at least some US tech companies.   You want cyber norms as the tech sector would write them?  It’s easy:  the norm is whatever the government in the companies’ biggest markets wants.  That, at least, goes a long way to explain Apple’s conduct.

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

Direct download: SteptoeCyberlawPodcast-175.mp3
Category:general -- posted at: 7:06pm EST

In this episode, we interview Jim Miller, co-chair of a Defense Science Board panel that reported on how the US is postured for cyberconflict and the importance of deterrence. The short answer: deterring cyberconflict is important because our strategic cyberconflict posture sucks. The DSB report is thoughtful, detailed, and troubling. Jim Miller manages to convey its message with grace, good humor, and clarity.

In the news, Brian Egan and I find ourselves unable to turn away from the Trump-Putin meeting in Warsaw. Bottom line: by raising concerns with election hacking, Trump did and said more or less what any President would have said and done – except he failed to stick the landing with a self-serving debrief. Or if the President’s short-lived establishment of a “joint computer security unit” was self-serving, we missed it.

File this under dog bites man: Europeans are beating up on Google. The UK data protection commissioner says it was unlawful for the National Health Service to share medical data with Google’s DeepMind subsidiary, even if the goal was to provide new medical insights.

And the EU’s massive fine for Google’s abuse of its dominant position leads to musings on the regulatory foundations of some competition law doctrines – plus an enthusiastic book recommendation.

Speaking of regulating cyberspace, China’s regulatory association is demanding “core socialist values” and in-house auditors for internet content sites.

Finally, in a first, we invite Steptoe summer associate Josh Holtzman on the podcast. Josh does a fine job breaking down the issues in a court fight over warrants-and-gag-orders served on Facebook, probably as part of an investigation into violence accompanying Donald Trump’s inauguration.

As always the Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Subscribe to the Cyberlaw Podcast here.  We are also on iTunesPocket Casts, and Google Play (available for Android and Google Chrome)!

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

Direct download: SteptoeCyberlawPodcast-174.mp3
Category:general -- posted at: 8:48pm EST

Today we deliver the second half of our bifurcated holiday podcast with an interview of Richard Ledgett, recently retired from his tour as NSA’s deputy director. We cover much recent history, from Putin’s election adventurism to questions about whether NSA can keep control of the cyberweapons it develops.  Along the way, Rick talks about the difference between CIA and NSA approaches to hacking, the rise of NSA as an intelligence analysis force, the growing effort to keep Kaspersky products out of sensitive systems, and the divergence among intelligence agencies about whether Putin’s attack on the American election was intended mainly to hurt Hillary Clinton or to help Donald Trump.

As always the Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Subscribe to the Cyberlaw Podcast here. We are also on iTunes, Pocket Casts, and Google Play (available for Android and Google Chrome)!

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

Direct download: SteptoeCyberlawPodcast-173.mp3
Category:general -- posted at: 2:55pm EST

In this news-only episode, we cover the irresistible story of the week: Trump, Russia, and the Media.  It’s especially irresistible for us because we’ve had two of the protagonists on as guests.  I make the bold prediction that Shane Harris’s stories on Russia collusion and the Trump campaign will be seen as the moment when the media OCD fascination with Russia collusion finally jumped the shark.  Though in this case, the shark had already consumed at least one Pulitzer-prize winning journalist, Eric Lichtblau.  (And for the record, CNN, I am not advocating that more journalists should be eaten by sharks, and I refuse to accept the blame when they are.)

Unfortunately, journalists chasing nonstories can’t devote any attention to some very real stories involving government and IT.  So we do it for them.  Stephen Heifetz reports on the CFIUS logjam that is blocking close to a dozen transactions because the administration has not filled the subcabinet positions that could sort through the filings with a coherent policy in mind.

In other cyberwar logjam news, the UN Government Group of Experts (GGE) has failed to produce a consensus report following up on earlier reports endorsing some application of the law of war to cyberattacks.  Brian Egan explains what that means for the UN, the Trump administration, and the future of international cooperation on cyber norms.

Finally, Stephanie Roy explains the significance of the latest spat between Ajit Pai and Mignon Clyburn over online privacy regulation.

As always, the Cyberlaw Podcast welcomes feedback.  Send an email 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: SteptoeCyberlawPodcast-172.mp3
Category:general -- posted at: 5:13pm EST

Our guest, Ellen Nakashima, was coauthor of a Washington Post article that truly is a first draft of history, though not a chapter the Obama administration is likely to be proud of.  She and Greg Miller and Adam Entous chronicle the story of Russia’s information operations attack on the 2016 presidential election.

Want to know how it feels to have Donald Trump tweeting your article and taunting the last administration?  Don’t worry, we ask.  Also why was the NSA only moderately confident that Putin was trying to help Trump win, and how did the Obama administration manage to “choke” at every turn.  Jim Comey makes a cameo appearance, ironically refusing to go public with his agency’s assessment of the hack because it might look like he was trying to influence the election — whew! – that’s a bullet dodged!

We dwell on the Obama administration’s bad luck in announcing its judgment on Putin’s hack half an hour before the Access Hollywood story broke and an hour before Podesta’s emails were released.  Sometimes you win the news cycle; sometimes the news cycle wins you.

Finally, Ellen talks about the plan to implant cyberweapons in Russian infrastructure and where it stands.  What infrastructure, you ask?  Infrastructure so serious it was approved by a phalanx of Obama administration lawyers, of course.  It’s an echt-Obama moment, the kind of thing that is bound to be in history’s second draft as well.

We begin the news roundup, as our fans demand, with the latest in sex toy cybersecurity law.  On a more serious note, Jennifer Quinn-Barabanov asks whether the Seventh Circuit has stuck a fork in the data breach class action tactic of offering full damages to the named plaintiff.

Jon Sallet reviews the remarkable success of the Obama Justice Department in challenging mergers in court and argues that it’s likely to continue, if not with the same frequency.

Michael Vatis and I pan Justice Kennedy’s gassy ode to the “Cyber Age” in Packingham v. North Carolina, an opinion that is sure to be cited far more often for its overblown dicta than for its unsurprising holding.

Speaking of the Court, the Solicitor General is seeking review of the Microsoft Ireland case.  Michael and I assess the odds of an affirmance.

Meanwhile, Maury Shenk reports, European angst over the internet continues to force the pace of government action.  Despite a leak revealing its spying on the US Government, Germany is doubling down, expanding law enforcement’s authority to hack suspects’ phones.   And the European Council is calling on Member States to prepare to impose sanctions in response to cyberattacks.

And where will those attacks come from?  Ask the Western IT companies that have recently been forced to disclose their source code to Russian intelligence agencies.  Strictly for cybersecurity purposes, naturally.

And LabMD has at last had a judicial hearing for its objections to the FTC’s handling of its data security case.  Michael and I agree:  it was such a bad day for the FTC that the Commission’s decision to override its own ALJ opinion now looks like hubris of the first order.

And, finally, we cover the equally hubristic decision of some CIA staff to demonstrate their hacker cred by spoofing the Agency’s snack machines.  It may be some consolation to them in unemployment that their exploit was pretty clever.  Or, who knows, maybe they’ve been brought back to help the agency implant the Kremlin’s snack machines.

As always, the Cyberlaw Podcast welcomes feedback. Send an email 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: SteptoeCyberlawPodcast-171.mp3
Category:general -- posted at: 7:22pm EST

This week’s episode is a news roundup without interview.  We lead with the Senate’s overwhelming adoption of unexpectedly tough Russia sanctions along with the Iran sanctions bill.  The mainstream press has emphasized that the bill will lock the Obama sanctions into legislation, but Anthony Rapa explains that the bigger story is just how tough the bill will be on investors in Russia’s energy sector, including European and other third-country firms.  This is going to put heavy pressure on the House and its Republican majority, where enthusiasm for punishing Russia has been more tepid.

In other legislative news, the Freedom Caucus has announced that it doesn’t know what it wants from 702 renewal, but it wants something.  At least that’s how I read the Caucus’s two sentence press release on Section 702 renewal.  In its entirety, the release says, “Government surveillance activities under the FISA Amendments Act have violated Americans’ constitutionally protected rights.  We oppose any reauthorization of the FISA Amendments Act that does not include substantial reforms to the government’s collection and use of Americans’ data.” In a rare show of Cyberlaw podcast consensus, Michael Vatis agrees.

Meanwhile, NSA and GCHQ are now linking WannaCry to North Korea.  The bad news is that North Korea is bringing the same spirit to cyberattacks that it has brought to nukes and missiles.  The good news is that the North Koreans are still bad at cyberattacks.  But they were bad at nukes and missiles once as well.

And we circle back to put the boot in on Reality Winner – the self-proclaimed “pretty, white, and cute” dingbat who leaked an NSA memo on Russia’s election hacking to the Intercept, which then managed to match her opsec cluelessness with its own.  

The export of exploits for internal security purposes is getting plenty of press, as the BBC goes after exports from Denmark to the Arab world while the New York Times exposes misuse of exploits to compromise critics of the Mexican government

As always, the Cyberlaw Podcast welcomes feedback. Send an email 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: SteptoeCyberlawPodcast-170.mp3
Category:general -- posted at: 4:47pm EST

In the news roundup, Benjamin Wittes makes a cameo appearance, defending Jim Comey (but not the FBI) from my suggestion that leaking has a long and unattractive history at the FBI.  Brian Egan takes us deep on federal records law.

Next, Ben actually finds himself to my right as we try to negotiate a quick resolution to the growing impasse over section 702.

I will never live it down. Nor will Ben.

Maury Shenk explains what the UK election means for tech.  Who knew?  The Unionists actually have a tech platform.

Maury and Brian muse on what the Qatar crisis tells us about cyberattacks – they may turn out to be much more effective as short-term one-offs than as sustained campaigns.

China has found a way to use its new cybersecurity law — to investigate Apple, naturally.  A better target would be the Chinese company Rafotech, which has installed something that looks a lot like spyware on 250 million machines.  I’ll be at the Irish government’s Data Protection Summit later this week, and I’ll be asking why the EU is wasting its human rights capital on fights with the US instead of China.

Finally, we cover Ukraine’s unusual new sanctions aimed at Russian social media companies, which are also Ukraine’s main social media companies?  No doubt there are censorship issues lurking in that program, but I can’t help wondering why human rights groups are riding the first amendment to the rescue of companies that dance to Vladimir Putin’s tune.

To close the episode, I interview Ben Buchanan, Fellow of the Cyber Security Project at the Harvard Kennedy School of Government.  I challenge the thesis of his book, The Cyber Security Dilemma: Hacking, Trust and Fear, and he holds up under the challenge pretty well.

As always, the Cyberlaw Podcast welcomes feedback. Send an email 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: SteptoeCyberlawPodcast-169.mp3
Category:general -- posted at: 6:05pm EST

Episode 168 features the Tinkers-to-Evers-to-Chance of global censorship, as Filipino contractors earning minimum wage delete posts in order to satisfy US tech companies who are trying to satisfy European governments.  In addition to Maury Shenk, our panel of interlocutors includes David Sanger, Chief Washington Correspondent for The New York Times, and Karen Eltis, Professor of Law at the University of Ottawa. Even if you think that reducing Islamic extremist proselytizing online is a good idea, I conclude, that’s not likely to be where the debate over online content ends up.  Indeed, even today, controls on hate speech are aimed more at tweets that sound like President Trump than at extremist recruiting.  Bottom line:  no matter how you slice it, the first amendment is in deep trouble.

In other news, I criticize the right half of the blogosphere for not reading the FISA court decision they cite to show that President Obama was spying illegally at the end of his term. Glenn Reynolds, I’m talking about you!

The EU, in a bow to diplomatic reality, will not bother trying to improve the Safe Harbor deal it got from President Obama.  Instead, it will try to get President Trump to honor President Obama’s privacy promises. Good luck with that, guys!

Wikimedia’s lawsuit over NSA surveillance has been revived by the court of appeals, and I find myself unable to criticize the ruling.  If standing means anything, it seems as though Wikimedia ought to have standing to sue over surveillance; whether Wikimedia should be wasting our contributions on such a misconceived cause is a different question.

China’s cybersecurity law has mostly taken effect Maury explains how little we know about what it means.

Finally, David Sanger, in his characteristic broad-gauge fashion, is able to illuminate a host of cyber statecraft topics: whether the North Koreans are getting better at stopping cyberattacks on their rocket program; how good a job did Macron really did in responding to Russian doxing attempt; and what North Korean hackers are up to in Thailand.

As always, the Cyberlaw Podcast welcomes feedback. Send an email 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: SteptoeCyberlawPodcast-168.mp3
Category:general -- posted at: 2:02pm EST

 

Episode 167 sees blockchain take over the podcast again.  With Stewart traveling, Alan Cohn hosts another of the podcast’s periodic deep dives into all things blockchain and digital currency.  Our guest is Meltem Demirors, Director of Development at Digital Currency Group.  Podcast regular Maury Shenk joins members of Steptoe’s Blockchain and Digital Currency Practice, including financial regulation practitioner Matt Kulkin, tax guru Cameron Arterton, and author of several recent smart contracts blog posts Jared Butcher, in breaking down the current state of affairs in the blockchain world.

Our episode begins by looking at the brewing controversy in the tax world.  Cameron skillfully takes us through IRS Notice 2014-21, which provided initial guidance for how virtual currencies would be treated for tax purposes, as well as the charmingly-named TIGTA Virtual Currency Report, released in September 2016, which told the IRS that it hadn’t done much beyond issuing this guidance to flesh out what it actually meant to consumers and businesses.  The IRS responded with the notorious Coinbase Summons, a John Doe summons that requested records of over 500,000 Coinbase subcribers.  Needless to say, this led to Coinbase users challenging the summons in court and moving to quash, while Congressional leaders question the wisdom of the IRS summons.  Cameron and Alan consider this an opportune moment for the IRS to work with the industry to develop additional guidance.

We then take on the emerging phenomenon of token sales, nicknamed Initial Coin Offerings or ICOs.  Matt and Alan tell us what in the world this is, how token sales work, and some of the legal challenges, including whether ICOs constitute sales of securities under the Howey test and the question of fiduciary duties.  Matt and Alan conclude that ICOs can vary significantly from each other and that ultimately virtual currencies and tokens may simply be a new asset class.

Steptoe has done a lot of writing lately on smart contracts, and Jared takes us through several recent Steptoe Blockchain Blog posts on reasons to put an arbitration clause in your company’s smart contracts, tips for drafting arbitration clauses in smart contracts, and best practices for limiting liability arising from smart contract vulnerabilities. Jared and Alan discuss the new approach companies need to take in considering issues like dispute resolution and liability limitations in the context of smart contracts.

We then go across the pond to Europe, where Maury gives us the status of the delayed EU proposal to extend AML regulation to virtual currencies.  Maury predicts that the legislation will pass this year forcing companies that provide virtual currency related services, such as exchanges and wallets, to comply with very burdensome requirements.

Finally, in the lightning round, Alan tells us about the recent surge in the price of bitcoin and other cryptocurrencies; Matt tell us about the future of leadership at the Commodity Futures Trading Commission and gives us an update on the Office of the Comptroller of the Currency’s proposed Fintech Charter, including a lawsuit by state regulators to head off this initiative.

In our interview, Meltem takes us through the current landscape of virtual currencies, including DCG’s recent launch of blockchain accelerator DCG Connect.  Meltem tells us about the current state of play for blockchain use cases and blockchain companies, and gives her thoughts on the ICO craze.  Meltem shares her thoughts on what she thinks are the most interesting things that she sees coming in the future, and she tells us what we should be looking for as signals that we’ve moved to the next stage of technical adoption of blockchain technology.

As always, the Cyberlaw Podcast welcomes feedback. Send an email 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: SteptoeCyberlawPodcast-167.mp3
Category:general -- posted at: 11:37am EST

In episode 166, we interview Kevin Mandia, the CEO and Board Director of FireEye, an intelligence-led security company.  FireEye recently outed a new cyberespionage actor associated with the Vietnamese government.  Kevin tells us how FireEye does attribution and just how good the Vietnamese are (short answer:  surprisingly good but apparently small in scale).  Along the way, we also cover questions such as whether China has its own set of forensic cybersecurity firms, how confident we should be about the attribution of WannaCry to North Korea, and whether PLA Unit 61398 should treat its designation as APT1 as a prestige designation, sort of like having “bob@microsoft” as your email address.

As always, the Cyberlaw Podcast welcomes feedback. Send an email 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: SteptoeCyberlawPodcast-166.mp3
Category:general -- posted at: 10:09am EST

Episode 165 is a WannaCry Festivus celebration, as The Airing of Grievances overtakes The Patching of Old Machines. Michael Vatis joins me in identifying all the entities who’ve been blamed for WannaCry, starting with Microsoft for not patching Windows XP until after the damage was done.  (We exonerate Microsoft on that count.)

Another candidate for WannaCry Goat of the Year is (of course) NSA for allegedly letting a powerful hacking tool fall into the hands of the Shadow Brokers, who released it in time for WannaCry’s authors to drop it into their worm. Private industry’s fingerpointing at NSA has led to introduction of the PATCH Act, which tries to institutionalize (and tilt) the vulnerability equities process.  I raise a caution flag about trying to prevent harmful vulnerability leaks by spreading information about the vulnerabilities to a new batch of civilian agencies.  I also ask whether a rational equities process should require that companies  get the benefit of the process only if they agree to patch their products promptly and if they cooperate to the extent possible with law enforcement rather than forcing agencies to hack their products just to carry out lawful searches.  Somehow I’m guessing that will cool Silicon Valley’s enthusiasm for the whole idea.

Meanwhile, Shadow Brokers, widely thought to be Russian intelligence, may be having an equally awkward Festivus celebration with their masters, since the exploit they released seems to be causing more widespread discomfort in Russia than in the West, probably because of Russia’s high usage of unpatched pirate software.

The North Koreans should be on the carpet as well, since there is increasing reason to believe that WannaCry was a mostly failed effort by Kim Jong Un to raise money through cybercrime. The worm seems to have collected only $100 thousand in bitcoin for its authors, and the worst of its impact was likely felt in China, the world capital of pirated unpatched software.  Since North Korea seems to rely on China’s internet infrastructure to launch and control its cyberattacks, launching one that mainly hurts its host is typically shortsighted.

Finally, the victims don’t escape blame. The SEC unveiled its latest criticism of private sector security practices in the financial industry as the WannaCry publicity reached a peak.

Meanwhile, our own Jon Sallet joins the Oliver-Pai debate on net neutrality, and through the magic of radio, he is able to coffee-cup-shame both of them.  (Sound effects credit to www.zapsplat.com.)  As an encore, Jon explains why the European Commission fined Facebook $122 million over its acquisition of WhatsApp – without undoing the deal.

As always the Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

 

Direct download: Episode_165.mp3
Category:general -- posted at: 10:48am EST

With our sound system back online, episode 163 is already a big step up from Lost Episode 162.  (Transcripts of 162 are available for those who wish by sending email to CyberlawPodcast@steptoe.com.)

Our interview is with Susan Munro, of Steptoe’s Beijing office.  Susan unwinds the complex spool of cyberlaw measures promulgated by the Chinese government.

In the news, Maury Shenk and I note that Putin reran his U.S. playbook in the French election, but the French were ready for him.  Indeed, what we originally thought to be crude Russian forgeries may actually be Macron “honey docs” meant to look like crude Russian forgeries. If so, my hat is off to Macron’s I.T. team. 

Meanwhile, Jennifer Quinn-Barabanov spots a new trend in cybersecurity litigation.  It’s nuts, but that’s not the new part.

The intelligence community’s latest transparency report reveals a shocking stat about “backdoor” FBI searches of 702 for criminal cases.  The bureau did that all of … one time.  Those who want to clog our security services with ever more burdensome processes are going to have to find a bigger scandal.  

The Republicans complaining about Susan Rice and “unmasking” can find more to work with in the report. Turns out that Americans were identified in masked or unmasked form in about 4000 reports last year, but by the time the report writers and the intelligence consumers were done, about 3000 reports had seen their Americans unmasked. With numbers like that, if the issue hadn’t been raised first by Republicans, every newspaper in America would be calling for an investigation of unmasking standards.

Okay, this is getting embarrassing.  The White House has now spent more time drafting a cyber EO calling for urgent reports from the departments than it’s giving the departments to write the urgent reports.  And so far, as Alan Cohn points out, all we have to show for it is … another leaked draft.

Jennifer explains why the latest Home Depot settlement is both good and bad for the plaintiffs’ bar. 

Alan dives deep for substance in the White House’s EO creating an American Tech Council.  He comes up empty.  The EO is purely procedural.

Maury explains the UK’s draft surveillance obligations, concluding there’s not much new in them.  And Germany’s intelligence service is complaining both about Russian hacking and about its lack of authority to, uh, hack back to destroy third party servers.  Chris Painter, call your office!

Alan tells us that DHS cybersecurity did pretty well in budget deal, but only if your point of comparison is EPA’s budget. 

At least DHS is making the right enemies.  Jennifer explains DHS backpedaling on the privacy rights of non-Americans.  And Alan and I flag the ABA’s interest in border searches of lawyers’ electronics.

Finally, in cybersecurity news, the Guardian plays the world’s smallest violin for billionaire superyacht owners, and the recent defeat of a common form of two-factor authentication will put new cybersecurity pressure on SS7.   

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

 

Direct download: SteptoeCyberlawPodcast-163.mp3
Category:general -- posted at: 4:52pm EST

In this episode, I debate Michael Schmitt, a prime mover in two Talinn Manuals on international law and cyber operations. We are joined by an expert on the topic and a new Steptoe partner, Brian Egan, who was formerly the State Department legal adviser, among other accomplishments. And among the hypotheticals is indeed a DDOS attack on the United States by internet-enabled vibrators with unchangeable default passwords. Because, as the news roundup covers, the FTC may soon be wrestling with the question of how to regulate such security violations.

Meanwhile, Michael Vatis and I clash over the meaning of the NSA’s decision to abandon productive intelligence collection. I think it’s risk aversion and a return to September 10. Michael thinks it’s too early to make that judgment.

Stephanie Roy gives an overview of Ajit Pai’s plan to undo the last two Federal Communications Commissions’ net neutrality strategies.

Michael reports on two Silicon Valley giants who fell prey to $100 million (each) cyberscams. I wonder if this means that technologists will stop gloating that Snowden and Shadowbrokers show that only private companies can be trusted to do security right.

This week in news that isn’t news at all: The Russians who hacked Clinton are going after Emmanuel Macron in France, says Trend Micro.  

Finally, vigilante justice seems to be sweeping the internet, as the spousal spyware firm, Flexispy, is doxed, and Brickerbot starts securing insecure IOT devices the hard way—by bricking them.

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

 

Direct download: SteptoeCyberlawPodcast-162.mp3
Category:general -- posted at: 4:55pm EST

In this episode, Alan Cohn and Maury Shenk look at questions in Europe and elsewhere in Stewart’s absence. Maury delves into why Google was ordered to turn over foreign data accessible from U.S., a decision that seems at odds with the Microsoft Ireland case. Alan considers claims made by David Sanger and William Broad in The New York Times that U.S. blew up North Korea’s most recent missile test, and Jeffrey Lewis’s rebuttal in Foreign Policy.  Alan and Maury both remain skeptical.

Leaving the Korean peninsula, Maury discusses the current effort by EU data protection regulators to enact e-privacy regulations that would, among other things, put in place detailed standards for location tracking and content associated with metadata.  No surprises, but potentially more headaches for US industry.   And back on U.S. soil, Alan comments on the U.S. Justice Department’s apparent decisions to reconsider criminal charges against Wikileaks for the CIA cyber-tools leak.  Maury provides some color on the Trump Administration’s (lack of) views on Privacy Shield.

Finally, Alan reviews the bidding on dual-use export controls and cyber technologies, explaining both the most recent negotiations under the Wassenaar Arrangement and the EU’s efforts to amend its dual-use export controls to include cyber-surveillance technologies. 

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

Direct download: SteptoeCyberlawPodcast-161.mp3
Category:general -- posted at: 2:16pm EST

This week the podcast features an extended news roundup with two guest commentators—Julian Sanchez of the Cato Institute and Gus Hurwitz of Nebraska Law School.  

We talk about the latest, mostly overhyped, Shadowbrokers dump, and whether Google Translate can be taught to render plain text into Shadowbrokerese as well as Klingon.

Stephanie Roy kicks off speculation about the future of net neutrality in the Pai FCC. The future looks bright for litigators.

Abbott Labs takes a short but brutal session in the woodshed from the FDA. Looks like Abbott’s now-subsidiary, St. Jude Medical, knew for years that its backdoor could be found by outsiders, but it stuck to the view that hardcoded access was a feature not a bug. Too bad Uber has already trademarked the name, because if ever there were a feature that deserved to be called “God mode,” this is it.

Burger King triggers a technical battle with Google and an editing war with Wikipedia with a commercial that begins, “Okay, Google, what’s a Whopper burger?” But, law nerds that we are, all we can talk about is whether Burger King is liable under the Computer Fraud and Abuse Act.  

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

 

Direct download: SteptoeCyberlawPodcast-160.mp3
Category:general -- posted at: 12:00pm EST

Our guest interview is with Nick Weaver, of Berkeley’s International Computer Science Institute.  It covers the latest dumps of hacker tools, the vulnerability equities process, the so-bad-you-want-to-cover-your-eyes story of Juniper and the Dual_EC hacks, and ends with a tour of recent computer security disasters, from the capture of a bank’s entire online presence, to the pwning of Dallas’s emergency sirens and a successful campaign to compromise the outsourcing firms that supply IT to small and medium sized businesses.

In the news roundup, Maury Shenk, and Jamil Jaffer, of George Mason’s National Security Law & Policy Program, talk with me about the likely outcome of the European movement to regulate encryption.  The bad news for Silicon Valley is that the US isn’t likely to play much of a moderating role when the Europeans tighten the screws.

In other news, Jennifer Quinn-Barabanov explains the two-front battle that Wendy’s is facing (and mostly losing) over data breach liability.

I acknowledge the latest Silicon Valley fad:  filing lawsuits on behalf of their customers’ privacy.  So far, Twitter has chalked up a win, and Facebook a loss. 

LabMD has also chalked up another win, this time in a Bivens action to hold FTC officials personally liable for aggressively enforcing the law against the company as punishment for its outspoken critique of the Commission.  The case has mostly survived a motion to dismiss.  

Meanwhile in Massachusetts, outmoded privacy laws continue to burden would-be undercover journalists, and Jennifer reports that the prospects for invalidating a law banning recordings of oral conversations on first amendment grounds took a hit last week, at least as it relates to public officials.

Finally, in other computer security news around the globe, Germany’s security services are claiming a lack of authority to take needed action in response to cyber threats.  In India, in contrast, enthusiasts for better attribution of India’s populace are forcing everyone to register in a detailed identity database – despite the efforts of India’s top court to ensure that the system remains voluntary.  The death of anonymity will be a prolonged affair, but the outcome seems inevitable.
As always, the Cyberlaw Podcast welcomes feedback.  Send an email to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Direct download: SteptoeCyberlawPodcast-159.mp3
Category:general -- posted at: 10:04am EST

Episode 157 digs into the security of the medical internet of things.  Which, we discover, could be described more often than we’d like as an internet of things that want to kill us.  Joshua Corman of the Atlantic Council and Justine Bone, CEO of MedSec, talk about the culture clash that has made medical cybersecurity such a treacherous landscape for security researchers, manufacturers, regulators, and, unfortunately, a lot of patients who remain in the dark about the security of devices they carry around inside them.  

In the news roundup, Phil Khinda takes us through the likely trend in SEC cybersecurity enforcement in the new administration.  Stephen Heifetz does the same for the Committee on Foreign Investment in the United States, or CFIUS.

I claim that Eli Lake’s Bloomberg story finally explains why Republicans think that Obama administration surveillance and unmasking of Trump team members needs to be investigated.  Stephen calls it a distraction.

In other news, Buzzfeed gets taken down by a lawyer with a sense of humor, big claims are made for the impact of the third Wikileaks Vault7 document dump, and Donald Trump may have forgiven Apple.  Finally, Jim Comey’s twitter account may have been outed; that’s the story, because the tweets themselves are anodyne in the extreme.

For those wanting to dig deeper into medical device cybersecurity, Joshua Corman recommends the following links, all referenced in the interview:

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

Direct download: SteptoeCyberlawPodcast-157.mp3
Category:general -- posted at: 10:02am EST

Our interview is with Michael Daniel, former Special Assistant to the President and Cybersecurity Coordinator at the White House and current President of the Cyber Threat Alliance. We ask Michael how the new guys are doing in his job, what he most regrets not getting done, why we didn’t float thumb drives filled with “The Interview” into North Korea on balloons, and any number of other politically incorrect questions. His answers are considerably more nuanced.

In the news roundup, we note that the second Wikileaks release is a damp squib, full of outmoded Apple exploits.

Michael Vatis and I unpack the Third Circuit ruling upholding imposition of contempt penalties on a defendant who has “forgotten” the password to his child porn trove.  It turns out that the case offers a road map for prosecutors and police who want to make sure no one ever forgets a password in their jurisdiction.

Stephanie Roy notes that Congress has begun the process of repealing the ISP privacy and security regulations adopted under Chairman Wheeler.  What, if anything, will replace them, and when, is a matter for lengthy speculation.

I note that the privacy zealots of Silicon Valley have fatally miscalculated the kind of support they’ll get in Europe for end-to-end encryption. Face it, guys, Europe hates you no matter what you do, and they’ll happily impose massive fines both for violating user privacy and for protecting it too well.

Does GCHQ spy on Americans for NSA? Nope. The real question is whether Rick Ledgett, number two at NSA, has already stopped sounding like a government employee when he talks to the press.

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

Direct download: SteptoeCyberlawPodcast-156.mp3
Category:general -- posted at: 4:10pm EST

Episode 155 of the podcast offers something new: equal time for opposing views. Well, sort of, anyway.  In place of our usual interview, we’re running a debate over hacking back that CSIS sponsored last week.  I argue that U.S. companies should be allowed to hack back; I’m opposed by Greg Nojeim, Senior Counsel at the Center for Democracy & Technology and Jamil Jaffer, Vice President for Strategy & Business Development of IronNet Cybersecurity.  (Jeremy Rabkin, who was supposed to join me in arguing the affirmative, was trapped in Boston by a snowstorm.)

In the news, we can’t avoid the unedifying—and cynical—spat between press and White House over wiretapping. Turning to legal news, I note the D.C. Circuit’s adoption of a cursory and unpersuasive reading of the Foreign Sovereign Immunities Act in the context of state-sponsored hacking of activists in the United States. Maury Shenk unpacks the latest ECJ opinion refusing to apply the “right to be forgotten” across the board to government databases. So far, the only clear application is to American tech giants. That’s also true of the latest German proposal to make the internet safe for censors, government and nongovernment alike. As Maury explains, the German Justice Minister is proposing fines up to $50 million for tech giants that don’t censor online speech fast enough or hire enough European private censors to keep up with the workload.

The Justice Department’s indictments in the Yahoo! hack show just how remarkably intertwined Russian intelligence and Russian cybercrime have become.

Alan Cohn and I chew over the latest developments in the new administration’s approach to cybersecurity—a determination to cripple botnets more effectively, and a willingness to exempt SHS cyber programs from what looks like a drastic set of budget cuts for nondefense agencies. Whether the administration can make progress on botnets while sticking to voluntary measures is uncertain; equally uncertain is whether the plus-ups for DHS cyber reflects satisfaction with the agency’s performance on that mission in recent years. 

Finally, Maury and I ask whether the German government is surrendering to reality in pursuing more effective video surveillance of possible criminals and terrorists.

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

Direct download: SteptoeCyberlawPodcast-155.mp3
Category:general -- posted at: 5:40am EST

In this week’s episode, we ask two acknowledged NSA cybersecurity experts, Curtis Dukes and Tony Sager, both from the Center for Internet Security, what they tell their family members about how to keep their computers, phones, and doorbells safe from hackers.

Joining us for the news round-up is Carrie Cordero, a Washington lawyer who focuses on national security law, homeland security law, cybersecurity and data protection issues.  She is also an adjunct professor of Law at Georgetown University.

Topping the news is the Wikileaks Vault7 release, including Assange’s mischievous offer to work with Silicon Valley to fix vulnerabilities before they’re disclosed.  Carrie, Markham Erickson, and I comment.

Stephanie Roy reports that the FCC is investigating a 911 outage at AT&T; so far the agency has been tight-lipped about the details.

Home Depot is nearing the finish line in its data breach ordeal, Jennifer Quinn-Barabanov reports. The banks that had to reissue credit cards were among the last holdouts; they’re getting $25 million, which sounds like a lot until you do the math and realize it’s two bucks a card.

Jennifer tells us that another defense effort to moot a TCPA class action by picking off a named plaintiff has been thwarted—this time by the Second Circuit.

Tom Graves (R-GA) has introduced a hackback defense to CFAA liability. Markham and I trade barbs over the wisdom of allowing hackback defenses, but we reach agreement on the depth of Uber’s greyballing problems—and the risk that more companies will use big data to disfavor some customers without telling them.

Carrie reports on developments in the FBI-Geek Squad imbroglio, and I mock the reporters who have bought the deeply unappealing defendant’s claim to be a civil liberties victim.

Last, and well worth the wait, Jennifer and I update our listeners on the latest in CyberSexToy privacy.  Turns out the records of interactions with your internet-enabled vibrator can be compromised for a surprisingly low settlement price. Maybe now we really ought to call the time of death for internet privacy.

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

Direct download: SteptoeCyberlawPodcast-154.mp3
Category:general -- posted at: 1:57pm EST

In this episode, Matt Tait, aka @PwnAllTheThings, takes us on a tour of Russia’s cyberoperations. Ever wonder why there are three big Russian intel agencies but only two that have nicknames in cybersecurity research? Matt has the answer to this and all your other Russian cyberespionage questions.

In the news, we mourn the loss of Howard Schmidt, the first cyber czar and one of the most decent men in government. Then we descend into the depths of the Trump wiretap story. I reprise some of my views from Lawfare. Michael Vatis is not persuaded.

After Microsoft’s refusal to provide data stored in the cloud outside the U.S. was upheld in the Second Circuit, things looked rosy for its position. But now two magistrates in a row have rejected that position.  Michael and I discuss the latest ruling.

Maury Shenk is now our official commentator on the legal consequences of Internet-enabled toys. This time it’s teddy bears, whose interactions with children and parents were exposed by hackers.

More seriously, Maury praises an impressive new analysis of China’s 50c army of tweeters. It turns out that everything we thought we knew about the 50c army is wrong. 

Just in time for an early spring, we have harbingers of the coming fight over reauthorization of the 702 intercept program. Director of National Intelligence candidate Dan Coats promises to put a number on the US persons whose communications are caught up in the program, the Electronic Frontier Foundation (EFF) and other NGOs turn on both the US government and Silicon Valley to urge that Privacy Shield be held hostage to changes in the program. And the incoming Commerce Secretary, Wilbur Ross, endorses Privacy Shield, a move that may validate EFF’s tactics.

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

Direct download: SteptoeCyberlawPodcast-153.mp3
Category:general -- posted at: 11:52am EST

Our guest for episode 152 is Paul Rosenzweig, and we tour the horizon with him.

In the news roundup, Stephanie Roy outlines the deregulatory tangle around ISPs, privacy, security, and the FCC. Maury Shenk briefs us on the European legislation authorizing the quashing of terrorist advocacy on line. Jennifer Quinn-Barabanov explains when standing is a defense against privacy claims and when it isn’t. Together, we remark on the latest example of formerly stodgy banks embracing their inner plaintiffness.

Maury explains why the Germans have banned Cayla the talking (and listening!) doll. I ask whether the Germans next plan to ban speakerphones. (Likely answer: only if they come from America.)

Paul and I dig into the Amazon claim that the first amendment prevents enforcement of a criminal discovery order seeking Amazon Echo recordings. Hey, the suspect might have been ordering books, and that’s a First Amendment activity, says Amazon; and anyway, what Alexa said back to the suspect was an exercise of Amazon’s First Amendment rights. These arguments cry out for the command most frequently heard by my music-playing Echo: “Alexa, that’s enough.”

Almost as unpersuasive to Paul and me is magistrate judge David Weisman’s refusal to issue an order allowing the police to search a home and make anyone on the premises put their fingers on their iPhones to unlock them. That act is testimonial in Weisman’s opinion because, well, because he says it is. (His Fourth Amendment analysis is better, but hardly compelling.)

Paul explains the dramatic clash of cultures hidden in the otherwise esoteric battle between the GSA’s inspector general and “18F,” an Obama-meets-Silicon-Valley effort to streamline government IT development. Like any good tragedy, you knew from the start that this trainwreck was coming, but you still can’t look away.

The draft cyber executive order still isn’t out, despite what looks like a much more disciplined vetting process than other EOs went through. What’s the reward for running a good interagency process in a White House not noted for such discipline? The Homeland Security Council may get folded under the National Security Council.

No one has heard of the National Association of Secretaries of State in 50 years. And if you want to know why, we say, look no further than NASS’s foolish resolution objecting to the designation of electoral systems as "critical infrastructure."

Finally, Paul and I noodle over DHS’s request that Chinese visitors to the US voluntarily disclose their social media handles. I predict that this puts the frog in the pot and the stove on simmer. Meanwhile, Paul finds one border security measure that even I wouldn’t adopt.

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

 
Direct download: SteptoeCyberlawPodcast-152.mp3
Category:general -- posted at: 3:20pm EST

In this episode, Stewart Baker goes to RSA and interviews the people that everyone at RSA is hoping to sell to—CISOs. In particular, John “Four” Flynn of Uber, Heather Adkins of Google, and Troels Oerting of Barclays Bank. We ask them what trends at RSA give them hope for the future, which make them weep, what’s truly new in cybersecurity, and what kind of help they would like from government. 

While Stewart’s traveling, Alan Cohn takes over the news roundup. We start with some news from the RSA Conference keynotes. Brad Smith, President of Microsoft, called for a cyber “Geneva Convention” on behalf of the sovereign nation of Microsoft. And Rep. Michael McCaul (R-TX), chair of the House Committee on Homeland Security, announced his opposition to backdoors in encryption, lining up with former Secretary of Homeland Security Michael Chertoff and former NSA and CIA Director Michael Hayden, but against current Attorney General Jeff Sessions and current FBI Director Jim Comey.

In news from across the pond, Maury takes us through the EU’s efforts to take on robots.  We coin the term #EURobotHammer in the process (it’s complicated). Maury also tells us whether the Russians are hacking the French elections (it’s complicated).

Back stateside, Alan asks what the cyber implications are of "out like Flynn, in with McMaster" at the National Security Council. Alan also confides in us about White House staffers’ use of confidential messaging apps like Confide (see what I did there?). 

Finally, Alan takes us through a few quick hits on CrowdStrike vs NSS Labs, the SASC’s new Cyber subcommittee, and Yahoo!’s $350M haircut.

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

Direct download: SteptoeCyberlawPodcast-151.mp3
Category:general -- posted at: 5:48pm EST

In our interview this week, we explore multiple worthwhile Canadian initiatives with Dominic Rochon, deputy chief of policy and communications for CSE, Canada’s version of the NSA and with Patricia Kosseim, general counsel and director general for policy at the Office of Canada’s Privacy Commissioner. Among other things, we take a close look at Canada’s oversight regime for intelligence, in which a retired judge gets to exercise executive authority over the CSE—in contrast to the US system where active judges do the same but pretend they’re carrying out a judicial function.

In the news roundup, Judge Robart is doing his best to hog the judicial headlines, not only blocking the Trump administration’s immigration policy but giving support to Microsoft’s suit to overturn discovery gag orders en masse. His opinion allows Microsoft to proceed with a lawsuit claiming that gag orders violated the First Amendment.

The Trump Administration could soon begin asking foreigners coming to the United States—particularly from some Muslim-majority countries—to turn over their social media accounts and passwords. This is a policy begun under the Obama administration and supported by bipartisan homeland security groups.  I predict that it will nonetheless soon be trashed by the press as an Evil Trump Initiative.

Tallinn 2.0 is out. It applies international law to cyber activity at and below the threshold of armed conflict. Color me skeptical.

The cybersecurity Executive Order that’s been hanging fire for weeks is still hanging fire. A new draft has been leaked, though, and it’s better.

Hal Martin is indicted for stealing massive amounts of data from NSA and perhaps others. According to a Washington Post report, US officials think Martin may have stolen 75%of the NSA’s hacking tools. Ouch.

In other news, Rick Ledgett, the No. 2 official at the NSA is leaving but not because of TrumpAnd Google has told several prominent journalists that state-sponsored hackers are trying to break into their inboxes.

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

Direct download: SteptoeCyberlawPodcast-150.mp3
Category:general -- posted at: 2:38pm EST

Our guest for episode 149 of the podcast is Jason Healey, whose Atlantic Council paper, “A Nonstate Strategy for Saving Cyberspace,” advocates for an explicit bias toward cyber defense and the private sector.  He responds well to my skeptical questioning, and even my suggestion that his vision of “defense dominance” would be more marketable if paired with thigh-high leather boots and a bull whip. #50ShadesofCyber.

In the news roundup, we experiment with, uh, actual legal discussion.  The Microsoft Ireland case has company; Google recently lost a similar argument before a magistrate judge – maybe because it couldn’t say where the data it wanted to protect from disclosure actually was.  Michael Vatis explains.

Meredith Rathbone and I take a victory lap over CNN and its reporters, noting that if they’d listened to the podcast, they’d have known a month early that US sanctions had unexpectedly prevented US companies from filing license applications with Russian intelligence agencies – and that allowing companies to make such filings wasn’t an opportunity for hyperventilating about President Trump’s bromance with Putin.

Michael and I also deconstruct Supreme Court nominee Neil Gorsuch’s opinion in US v. Ackerman.  The opinion calmly and clearly puts a hole below the waterline in a longstanding approach to collecting evidence in child porn cases.  If this case gives a clue to his jurisprudence, it seems unlikely that a Justice Gorsuch will be a pushover for government arguments.

Can American companies sue governments that hack them in the US?  I hope so, but that depends on whether the Foreign Sovereign Immunities Act provides protection for malware sent from abroad that does its damage here.  In an unlikely-bedfellows moment, I’m depending on EFF to make that argument to the DC Circuit.

And, to follow up on two stories we covered earlier, Brexit authority slips quickly through the House of Commons, while Google’s penny-pinching settlement of a massive “wiretapping” class action is approved over objections to the cy pres payments to the usual NGOs.

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

 

Direct download: SteptoeCyberlawPodcast-149.mp3
Category:general -- posted at: 5:13pm EST

Our guest for episode 148 of the podcast is Corin Stone, the Executive Director of the National Security Agency.  Corin handles some tough questions – should the new team dump PPD-28, how is morale at the agency after the Snowden and Shadowbroker leaks, and will fully separating Cyber Command from NSA mean new turf fights?  I give Corin plenty of free advice and, more usefully, our first in-person award of the coveted Steptoe Cyberlaw Podcast coffee mug.

In the news, Alan Cohn and I cover the Second Circuit’s much-ado-about-nothing package of opinions on rehearing the Microsoft-Ireland case.

Maury and I discuss what the new White House executive order on the privacy rights of foreigners means – as well as Donald Trump’s meeting with Theresa May (including whether they talked about Russia sanctions).  Also on the agenda:  Has Donald Trump already surpassed Barack Obama’s lifetime record for holding hands with prominent White House visitors?

Speaking of Peter Thiel, Jennifer Quinn-Barabanov and I speculate about whether FTC commissioner Maureen Ohlhausen will pull the FTC back from the ledge on suing companies for security flaws that don’t cause demonstrable consumer harm.  And whether Peter Thiel is looking for someone else to chair the FTC.

In other news, no new executive order on cybersecurity yet, despite (or because of) the leaks China disses attribution.  And ADT settles an early IOT security class action.

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

 

Direct download: Episode_148.mp3
Category:general -- posted at: 12:37pm EST

Our guest interview is with Jack Goldsmith, Shattuck Professor of Law at Harvard and co-founder of Lawfare. We explore his contrarian view of how to deal with Russian hacking, which leads to me praising (or defaming, take your pick) him as a Herman Kahn for cyberconflict. Except what’s unthinkable in this case are his ideas for negotiating, not fighting, with the Russians.

In the news roundup, I ask Michael Vatis whether the wheels are coming off the FTC’s business model, as yet another company refuses to succumb to the commission’s genteel extortion. 

The Obama Administration came to an end last week, and its officials left behind a lot of paper to remind us why we’ll miss them—and why we won’t. A basically sympathetic review of the administration’s cyber policies ends with a harsh judgment on President Obama: “He did almost everything right and it still turned out wrong.”

Among the leftovers served up last week: a farewell statement on privacy that seems unlikely to prove relevant in the new administration, a workman-like report on cyber incident responsea wistful FCC public safety bureau report on the commission’s cybersecurity initiatives, and a zombie notice that showed up in the Federal Register three days into the Trump administration, implementing the Umbrella Agreement on data protection with the EU. Maury Shenk evaluates the agreement and its prospects.

And just to make sure we haven’t forgotten the new team’s rather different approach, it posted a policy statement on how good its cyber policy will be. It reads, in its entirety, “Cyberwarfare is an emerging battlefield, and we must take every measure to safeguard our national security secrets and systems. We will make it a priority to develop defensive and offensive cyber capabilities at our U.S. Cyber Command, and recruit the best and brightest Americans to serve in this crucial area.”

I try a quick explanation of the flap between security researchers and the Guardian over an alleged “back door” in WhatsApp messaging. Somehow, the Iran-Iraq war makes an appearance.

And, in a first for the Steptoe Cyberlaw Podcast, Alan Cohn reports as our roving foreign correspondent from, where else, Davos. Want to know what the global 1% are worried about—other than you? Alan has the answers.

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

Direct download: SteptoeCyberlawPodcast-147.mp3
Category:general -- posted at: 1:15pm EST

Would it violate the Posse Comitatus Act to give DOD a bigger role in cybersecurity? Michael Vatis and I call BS on the idea, which I ascribe to Trump Derangement Syndrome and Michael more charitably ascribes to a DOD-DHS turf fight.

Should the FDA allow implants of defibrillators with known security flaws—without telling the patients who are undergoing the surgery?  That’s the question raised by the latest security flaw announcement from the FDA, DHS, and St. Jude Medical (now Abbot Labs).

Repealing the FCC’s internet privacy regulations is well within Congress’s power if it acts soon, says Stephanie Roy, who stresses how rare it is for a Republican president to control both houses of Congress.  (And who says President Obama didn’t leave a legacy?)

The European Commission isn’t done complaining about U.S. security programs, Maury Shenk tells us. Vera Jourova wants to know more about the U.S. request that Yahoo! screen for certain identifiers and hand over what it finds. That’s apparently too useful for finding terrorists to satisfy delicate European sensibilities  Speaking of which, Angela Merkel is in the bulls-eye for Russian doxing.  And to hear Maury tell it, Russia has probably been collecting raw material for years.

Should we start treating Best Buy computer support as though its geeks work for the FBI? And would that be a defense if they find bad stuff on our computers without a warrant? Michael thinks it’s more complicated than that.

Speaking of overhyped stories, Michael and I unpack the claim that President Obama’s team is handing out access to raw NSA product with unseemly haste and enthusiasm. In fact, this proposal has been kicking around the interagency for years, and the access is heavily circumscribed. As for the haste, it could be the outgoing team is afraid its proposal will be unduly delayed—or that all its circumscribing will be second-guessed. You make the call!

And for something truly new, we offer “call-in corrections,” as Nebraska law professor Gus Hurwitz tells us about the one time the FTC discussed the NIST Cyber Security Framework.  It’s safe to say that this correction won’t leave the FTC any happier than my original charge that the agency can’t get past “Hey! I was here first!”

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

 

Direct download: SteptoeCyberlawPodcast-146.mp3
Category:general -- posted at: 10:29am EST

Steptoe Cyberlaw Podcast – Interview with Davis Hake and Nico Sell

Episode 145:  What Donald Trump and “Occupy Wall Street” have in common

We interview two contributors to CSIS’s Cybersecurity Agenda for the 45th President.  Considering the track record of the last three Presidents, it’s hard to be optimistic, but Davis Hake and Nico Sell offer a timely look at some of the most pressing policy issues in cybersecurity.

In the news roundup, it’s more or less wall to wall President-elect Trump. Michael Vatis, Alan Cohn, and I talk about Russian hacking, the American election, Putin’s longtime enthusiasm for insurgent movements from “Occupy Wall Street” to “Make America Great Again,” and the President-elect’s relationship with the intelligence community.

In other news, I’m forced to choose between dissing the New York Times and dissing Apple’s surrender to Chinese censorship. Tough call, but I make it. Speaking of censorship, Russia is rapidly following China’s innovation in app store regulation.  For legal antiquarians, I suggest that the Foreign Agent Registration Act deserves a comeback.

It seems to be solidarity week.  Lots of amici have leapt to support LabMD in court now that it looks like a winner Meanwhile I stick up for Mike Masnick, the man who puts the dirt in Techdirt. He may be an colorfully opinionated jerk, but he doesn’t deserve to be a defendant.  And I congratulate Lawfare for joining the Europocrisy campaign on Schrems and China.

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

 

 

Direct download: SteptoeCyberlawPodcast-145.mp3
Category:general -- posted at: 4:07pm EST

We start 2017 the way we ended 2016, mocking the left/lib bias of stories about intercept law.  Remember the European Court of Justice decision that undermined the UK’s new Investigatory Powers Act and struck down bulk data retention laws around Europe?  Yeah, well, not so much.  Maury Shenk walks us through the decision and explains that it allows bulk data retention to continue for "serious" crime, which is really the heart of the matter.

We can’t, of course, resist an analysis of the whole Russian election interference sanctions brouhaha.  The FBI/DHS report on Russian indicators in the DNC hack is taking on water, and its ambiguities have not been helped by a Washington Post article on alleged Russian intrusion into Vermont Yankee’s network.  That story had to be walked way back, from an implicit attack on the electric grid to an apparently opportunistic infection of one company laptop.  No one is surprised that there’s an increasingly partisan split over who’s going to answer the phone now that the 1980s really have called to get their foreign policy back. 

Meredith Rathbone walks us through the revamp of the Obama Administration’s cyber sanctions in an attempt to address election meddling.  And we manage to find a legal twist to the new sanctions on the FSB.  Turns out that large numbers of U.S. tech firms have to deal with the FSB, not as a buyer of services but as a regulator, both of encryption and intercepts inside Russia.  If the sanctions prohibit dealing with FSB as a regulator, Maury reports, they could end up imposing unintentionally broad restrictions on a lot of US companies doing business in Russia.

Meredith also updates us on the Wassenaar effort to control exports of “intrusion software”—which some European governments seem to want to regulate in a way that does maximum damage to cybersecurity.  The overreaching was blunted in a recent Wassenaar meeting, but not nearly as much as the U.S. government—and industry—had hoped.  The issue won’t go away, but it will soon become an appropriate job for the author of “The Art of the Deal.”

Finally, Jennifer Quinn-Barabanov takes us on a tour of the dirtier back streets ofprivacy class action practice—otherwise known as cy pres awards and their challengers.  It sounds like “genteel corruption” to me, but you be the judge.

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

Direct download: SteptoeCyberlawPodcast-144.mp3
Category:general -- posted at: 11:01am EST

Fresh off a redeye from Israel, I interview Matthew Green of the Johns Hopkins Information Security Institute. Security news from the internet of things grows ever grimmer, we agree, but I get off the bus when Matt and the EFF try to solve the problem with free speech law.

In the news roundup, Matt joins Michael and me to consider the difficulties of retaliating for Putin’s intrusion into the US election. There just aren’t that many disclosures that would surprise Russians about Vlad, though the Botox rumors are high on my list.

In other news, the EU’s cybersecurity agency, ENISA, issues a report on crypto policy that has a surprisingly musty air.

Two new settlements show the limits of privacy law. Michael Vatis covers them both. Ashley Madison settles with the FTC and is assessed a large fine that has to be partially forgiven because the company can’t pay. We all thought that adultery was a more durable business model. And Google settles a class action for unlawful wiretapping by agreeing to scan everyone’s email a few microseconds later than it used to. To spike the football in its victory, Google offers most victims of the violation damages that amount to, well, nothing.

Ah, but Europe marches on, convinced that more privacy regulation will solve the twenty-first century for Europe. Given a choice between more privacy regulation or less, the EU of course chooses more. Maury Shenk explains.  Meanwhile faced with the problem of “fake news” and the real risk that Vladimir Putin will use doxing and propaganda against Angela Merkel in her election next year, Europe has the answer: more regulation, especially regulation that puts all the blame on American social media companies. The first amendment rights of Americans look to be collateral damage.

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

Direct download: SteptoeCyberlawPodcast-143.mp3
Category:general -- posted at: 9:25am EST

Too busy to read the 100-page Presidential Commission on Enhancing National Security report on what the next administration should do about cybersecurity? No worries. Episode 142 features a surprisingly contentious but highly informative dialog about the report with Kiersten Todt, the commission’s executive director.

In the news, Lindsey Graham, John McCain, and a host of Dems want to investigate Russia’s role in the recent election, while the President-elect thinks it’s, well, fake news, to borrow a lefty trope. Michael Vatis presses me to pick a side. Long-time listeners won’t be surprised at my answer.

The Ninth Circuit offers ginger approval for the use of FISA-derived evidence in a criminal trial.

Gen. John Kelly is picked to head DHS. What does that say about its role in cybersecurity? Nothing, I venture. On crypto, though, we could finally see a commission. Chairman McCaul supports the idea, and it’s just possible that foreign government action and the Trump presidency will finally make Silicon Valley nervous enough to stop stonewalling and start talking.

We close with a definitive five-minute briefing on the future of net neutrality. The quick answer is that the dingoes are running the child care center.

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

Direct download: SteptoeCyberlawPodcast-142.mp3
Category:general -- posted at: 2:35pm EST

We ask Rihanna to sum up the latest U.S.-EU agreement:

And that’s when you need me there
With you I’ll always share …
You can stand under my umbrella

RiRi’s got the theory right:  The Umbrella Agreement was supposed to make sure the U.S. and EU would always share law enforcement data.  But when the Eurocrats were done piling on the caveats, it’s clear what concessions that US has made but it isn’t clear if the EU has made any at all. Meanwhile, the Investigatory Powers Act has gained royal assent, Maury Shenk walks us through both developments.

The Trump administration is hinting at a change in responsibility for protecting critical infrastructure from cyberattack, and it’s consistent with the President-elect’s enthusiasm for turning hard jobs over to generals. Congress is doing its bit, elevating Cyber Command to full combatant command status. But the Obama administration may still be toying with the idea of firing Adm. Rogers.

In good news, DOJ and a boatload of other countries have sinkholed Avalanche botnet. Michael Vatis has the details.

Kudos to Sen. Cornyn, who held off a series of left/lib attacks on the changes to Rule 41 needed to catch even moderately sophisticated child porn and cyber law breakers.

Tom Donilon’s Commission on what the next administration should do about cybersecurity has delivered recommendations. The response:  crickets.

Lastly, Saudi Arabia suffers major Iranian attack.

We then turn to an interview with Scott Charney, Corporate Vice President for Trustworthy Computing at Microsoft.  I’ve known Scott for 25 years and he’s an acute observer of the international cybersecurity scene.  He discusses international pressures on technology companies including the conflicted roles of governments dealing with encryption.

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

 

Direct download: SteptoeCyberlawPodcast-141.mp3
Category:general -- posted at: 10:03am EST

Episode 140 features long-time New York Times reporter, John Markoff, on the past and future of artificial intelligence and its ideological converse—the effort to make machines that augment rather than replace human beings. Our conversation covers everything from robots, autonomous weapons, and Siri to hippie poetry of the 1960s and Silicon Valley’s short memory on use of the term “cyber.”

In the news, Maury Shenk reports that five EU members now say they want EU-wide crypto controls. And that’s not counting France and Germany.  Maybe the real question is whether any EU countries oppose encryption regulation.  We can’t find any. Tongue firmly in cheek, I thank Tim Cook for bringing the need for government crypto regulation to the attention of governments around the world.

It turns out that the FBI actually hacked more than 8,000 computers in 120 countries in a single child porn investigation. Wow. And the Justice Department is lecturing me on the risk that active defense could cause unexpected foreign relations problems? Well, I guess they would know.

We-Vibe’s undisclosed collection of data about users of its smart-phone enabled vibrators spurs a class action. Or should that be a “lacks class” action? I confess to being nonplussed by the uses to which an Internet-connected vibrator app can be put. And even more nonplussed when Jennifer Quinn-Barabanov explains how We-Vibe could contribute to the law of standing.

The Wages of Defeat, part one: Election hack fever seizes the left, and I ask Alan what the law should do about vulnerable election infrastructure. Jill Stein is almost certainly wrong about election hacking this year (or in it for the money), but now that everyone has some reason to question the integrity of our election process, Alan and I ask whether there’s room for bipartisan improvements in electoral systems.

Wages of Defeat, part two: Fake news fever seizes the left. For sure it’s a real problem, and Putin is part of it, but solutions are hard to find. Fake news is often in the eye of the beholder, and neither the mainstream media (see, e.g., here or here) nor the barons of social media (Milo Yiannapoulos, call your office) have been exactly even-handed in dealing with conservative views. If we want to go after foreign government sponsored fake news, I suggest, maybe an updated Foreign Agent Registration Act is worth looking at. Between the first amendment and a lack of trust in would-be fake news umpires, there aren’t a lot of other attractive solutions out there.

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

Direct download: SteptoeCyberlawPodcast-140.mp3
Category:general -- posted at: 11:54am EST