In this episode, I interview Thomas Rid about his illuminating study of Russian disinformation, Active Measures: The Secret History of Disinformation and Political Warfare. It lays out a century of Soviet, East European, and Russian disinformation, beginning with an elaborate and successful operation against the White Russian expatriate resistance to Bolshevik rule in the 1920s. Rid has dug into recently declassified material using digital tools that enable him to tell previously untold tales – the Soviets’ remarkable success in turning opposition to US nuclear missiles in Europe into a mass movement (and the potential shadow it casts on the legendary Adm. Hyman Rickover, father of the US nuclear navy), the unimpressive record of US disinformation compared to the ruthless Soviet version, and the fake American lobbyist (and real German agent) who persuaded a German conservative legislator to save Willy Brandt’s leftist government. We close with two very different predictions about the kind of disinformation we’ll see in the 2020 campaign.

In the news, David Kris, Nick Weaver, and I trade perspectives on the Supreme Court’s grant of certiorari on the question when it’s a crime to access a computer “in excess of authority.” I predict that the Justice Department’s reading of the Computer Fraud and Abuse Act will lose, but it’s far from clear what will replace the Justice Department’s interpretation.

Remember when the House left town without acting on FISA renewal? That’s looking like a worse and worse decision, as Congress goes weeks without returning and Justice is left unable to use utterly uncontroversial capabilities in more and more cases. Matthew Heiman explains.

In Justice Department briefs, all the most damaging admissions are down in the footnotes, and it looks like that’s true for the inspector general’s report on the Carter Page FISA. Recently declassified footnotes from the report make the FBI’s pursuit of the FISA order look even worse, in my view. But at the end of the day, the footnotes don’t add much to suspicions of a partisan motivation in the imbroglio.

Speaking of IG reports, the DOD inspector general manages to raise the possibility of political skullduggery in the big DOD cloud computing award and then to offer a way to stick it to Amazon anyway. Meanwhile, the judge overseeing the bid protest gives the Pentagon a chance for a do-over. 

Matthew covers intel warnings about China-linked ‘Electric Panda’ hackers and that the Syrian government is spreading surveillance malware via coronavirus apps. And David notes that a Zoom zero-day is being offered for $500,000.Nick and I mix it up, first over the Gapple infection tracing plan and their fight with the UK National Health Service and then over Facebook’s decision to suppress posts about demonstrations that protest the lockdown by violating the lockdown.

Download the 312th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

The Cyberspace Solarium Commission’s report was released into the teeth of the COVID-19 crisis and hasn’t attracted the press it probably deserved. But the commissioners included four sitting Congressmen who plan to push for the adoption of its recommendations. And the Commission is going to be producing more material – and probably more press attention – over the coming weeks. In this episode, I interview Sen. Angus King, co-chair of the Commission, and Dr. Samantha Ravich, one of the commissioners.

We focus almost exclusively on what the Commission’s recommendations mean for the private sector. The Commission has proposed a remarkably broad range of cybersecurity measures for business. The Commission recommends a new products liability regime for assemblers of final goods (including software) who don’t promptly patch vulnerabilities. It proposes two new laws requiring notice not only of personal data breaches but also of other significant cyber incidents. It calls for a federal privacy and security law – without preemption. It updates Sarbanes-Oxley to include cybersecurity principles. And lest you think the Commission is in love with liability, it also proposed liability immunities for critical infrastructure owners operating under government supervision during a crisis. We cover all these proposals, plus the Commission’s recommendation of a new role for the Intelligence Community in providing support to critical US companies.

In the news, Nick Weaver and I dig deep into the Google and Apple proposals for tracking COVID-19 infections. I’ve got a separate post in the works on the topic, but the short version is that I think Google and Apple have dramatically overvalued privacy interests and downgraded, you know, actually tracking infections. Nick and I agree that the app should operate on an opt-out basis, not opt-in.

The Great Decoupling, part 278: It looks as though China Telecom will be getting the boot from US telecom markets, at least if Team Telecom has anything to say about it. And speaking of Team Telecom, Brian Egan tells us that it has a new charter and a new, catchy acronym: CAFPUSTTSS!

Nick and I dig into a Ninth Circuit decision that may be bound for the Supreme Court. It holds that Facebook can be held liable for wiretapping when it gets information from its widely deployed “like” buttons on third-party sites.

Fish gotta swim, birds gotta fly, and the EU has to regulate tech, coronavirus or not. Maury Shenk reports, bemusedly.

Matching him bemusement for bemusement, Nick tries to explain a French ruling that Google must pay news outlets for content (and can’t stop linking to the outlets).

Maury explains the 5G-coronavirus conspiracy that has Brits burning cellular masts.

Nick explains how to make a “smart” lock spill its secrets, and how to fall foul of the FTC.

And in quick takes, the COVID-19 cyber threat has the US and UK authorities joining hands against cyberattacks, the Australian government is hacking criminals who are exploiting coronavirus, and it turns out that IoT devices may defect to work for foreign intelligence agencies.

Download the 311th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

Nate Jones and I dig deep into Twitter’s decision to delete Rudy Giuliani’s tweet (quoting Charlie Kirk of Turning Point) to the effect that hydroxychloroquine had been shown to be 100% effective against the coronavirus and that Gov. Whitmer (D-MI) had threatened doctors prescribing it out of anti-Trump animus. Twitter claimed that it was deleting tweets that “go directly against guidance from authoritative sources” and separately implied that the tweet was an improper attack on Gov. Whitmer. 

So where did Twitter find the “authoritative guidance” that Giuliani was supposed to be “going directly against”? Of course, Twitter isn’t explaining itself, which raises questions about the basis for its action. (I offered two of its representatives a chance to come on the podcast to offer a defense; they didn’t respond.)

In short, all the people who’ve been telling us our freedoms are at risk as a result of the health emergency might be right, but the source of the danger isn’t government. It’s Silicon Valley.

Nate thinks (probably correctly) that Kirk and Giuliani were wrong about the “100% effective” claim, and that people like them and the president are going to get people to take dangerous drugs without medical advice if they aren’t policed. It’s a spirited exchange.

In contrast, Paul Rosenzweig and I find a fair amount of common ground outside this week’s media consensus that Zoom is either evil or stupid, maybe both, for its handling of privacy and security of users. No doubt there are a staggering number of privacy and security holes in the product, and the company will get sued for several of them. But we suspect that many of the problems would have been exposed and fixed over the course of the three years it would have taken Zoom to reach the levels of use it’s instead reached in three weeks. One error, exposing LinkedIn data to unrelated users with the same Internet domain, seems to have hit Dutch users especially hard. 

The DOJ inspector general has found widespread gaps in the FBI’s compliance with its now-famous Woods procedures. Matthew Heiman and I try to put the damaging report in perspective. It’s hard to know at this point how serious the gaps are, though the numbers suggest that some will be serious. Meanwhile, the FISA court has ordered a rush evaluation from Justice of more or less exactly the same questions the IG is asking. We manage to agree that the court’s June 15 deadline is not realistic given everything else the same group of lawyers will be doing between now and November. 

Matthew tells us that the Saudis are suspected of a phone spying campaign in the United States. I point out that foreign location collection is pretty much built into the SS7 phone system, so the worst that can be said about the event is that the Saudis were caught doing “too much” spying in the US.

Paul comes down agreeing with a new court ruling that violating a site’s terms of service isn’t criminal hacking. And now that that’s settled, I have a research proposal for the Hewlett Foundation.

Washington State has adopted a facial recognition law that Microsoft likes, Nate tells us. No surprise, I suggest, since the law will only regulate governments, not the private sector. I’m not a fan; it looks like a law that virtually guarantees that any facial recognition system will be forced to “correct” empirical results in favor of quotas for “protected subpopulations.” This leads, in light of Zoom’s problems, to the question of whether that includes the Dutch.

Who is hacking the WHO? Who isn’t? Matthew notes that Iran has joined what must be a crowd of eavesdroppers in WHO networks.

Nostalgic for the days before the coronavirus? How about this blast from the past: Marriott has revealed a data breach exposing (some) personal data for up to 5.2 million customers.

I close the episode with the good news that some coders seem to be taking up the challenge I offered in the last episode and on Lawfare to construct an infection tracing system using mobile phones that will work in the US.

Download the 310th Episode (mp3).

Take our listener poll at steptoe.com/podcastpoll. You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

In this bonus episode, we present a lightly edited interview about Israel’s technology- and surveillance-heavy approach to the COVID-19 pandemic. In it, Matthew Waxman, Liviu Librescu Professor of Law at Columbia University, and I talk to Yuval Shany, a noted Israeli human rights expert and professor at Hebrew University. We cover the particularly fraught political crisis that the virus exacerbated, the Israeli government’s use of counterterrorism tools to trace contacts of infected individuals, and the significance of locational privacy in the face of a deadly contagion. Our thanks to both Nachum Braverman of Academic Exchange and Benjamin Wittes of Lawfare for making the interview possible.

Download the 309th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

David Kris, Paul Rosenzweig and I dive deep on the big tech issue of the COVID-19 contagion: Whether (but mostly how) to use mobile phone location services to fight the virus. We cover the Israeli approach, as well as a host of solutions adopted in Singapore, Taiwan, South Korea and elsewhere. I’m a big fan of Singapore, which produced in a week an app that Nick Weaver thought would take a year.

In our interview, evelyn douek, currently at the Berkman Klein Center and an SJD candidate at Harvard, takes us deep into content moderation. Displaying a talent for complexifying an issue we all want to simplify, she explains why we can’t get live with social platform censorship and why we can’t live without it. She walks us through the growth of content moderation, from spam, through child pornography and on to terrorism and “coordinated inauthentic behavior”—the identification of which, evelyn assures me, does not require an existentialist dance instructor. Instead, it’s the latest and least easily defined category of speech to be suppressed by Big Tech.

Returning to the News Roundup, Nate Jones and evelyn mull the head-spinning change the virus has made in the public reputation of Big Tech, but Nate wonders if Silicon Valley's PR glow will last.

Meanwhile, China is celebrating its self-proclaimed victory over COVID-19 by borrowing Russian tactics to spread coronavirus disinformation. I argue that any country adopting Russia’s patented “Who knows what’s true?” tactics probably has something to hide.

We take advantage of evelyn’s Aussie ties to get a translation (and an apology) for Australia’s latest venture into the business of blocking graphic violent content.

David and Paul review the White House’s National Strategy for 5G Security. They talk for two minutes, but they say more than the strategy.

The House of Representative has irresponsibly bolted for home without even a temporary reauthorization of expiring FISA authorities. Paul and David explain why that isn’t quite the disaster it sounds like. Quite.

David says the Justice Department has brought the first fraud case stemming from the coronavirus crisis, and I suggest that case itself has a whiff of false advertising about it.

Amazon is complaining that the Pentagon is trying to fix some of the contract award problems in the big Defense Department cloud procurement. Paul is more sympathetic than I am.

And Paul questions the wisdom of failing to delay CCPA enforcement while the coronavirus rages across California.

Download the 308th Episode (mp3).

Take our listener poll at steptoe.com/podcastpoll. You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

That’s the question I debate with David Kris and Nick Weaver as we explore the ways in which governments are using location data to fight the spread of COVID-19. Phone location data is being used to enforce quarantines and to track contacts with infected people. It’s useful for both, but Nick thinks the second application may not really be ready for a year – too late for this outbreak.

Our interview subject is Jason Healey, who has a long history with Cyber Command and a deep recent oeuvre of academic commentary on cyber conflict. Jay explains Cyber Command’s doctrine of “persistent engagement” and “defending forward” in words that I finally understand. It makes sense in terms of Cyber Command’s aspirations as well as the limitations it labored under in the Obama Administration, but I end up wondering whether it’s going to be different from “deterrence through having the best offense.” Nothing wrong with that, in my view – as long as you have the best offense by a long shot, something that is by no means proven.

We return to the news to discover the whole idea of national security sunsets looking dumber than it did when it first saw the light of day (which is saying something). Several important FISA authorities have fallen to the floor, Matthew Heiman reports. Thanks to Sens. Rand Paul and Mike Lee, I might add (Nick blames President Trump, who certainly stepped in at a bad time). Both the House and the Senate passed measures to keep FISA authorities alive, but the measures were completely different and out of sync. Maybe the House will fix that this week, but only for a couple months. Because of course we’ll be rested and ready in the middle of a contagion and a presidential campaign for a debate over Sen. Paul’s proposal to make it harder to wiretap and prosecute Americans who spy for foreign governments. 

Maybe some aiming should have come before naming and shaming? The US has dropped the Mueller team’s charges against a sponsor of Russian electoral interference, Matthew tells us.

There’s another major leak about government skullduggery in cyberspace, David tells us, and WikiLeaks is, uh, nowhere to be seen. That’s because the skulldugging government in question is Vladimir Putin’s, and WikiLeaks is looking more and more like it is in cahoots with Putin. So it falls to a group called Digital Revolution to publish internal FSB documents showing Russia’s determination to acquire a huge DDOS network, maybe enough to take whole nations offline. 

Alan Cohn makes a guest appearance to discuss the role that DHS’s CISA is playing in the COVID-19 crisis. And it has nothing to do with cybersecurity. Instead, CISA is ensuring the security of critical infrastructure around the country by identifying facilities that need to keep operating, notwithstanding state lockdown orders. We talk about the federalism crisis that could come from the proliferation of critical infrastructure designations, but neither of us expects it soon. 

Here’s a surprise: Russia is deploying coronavirus disinformation, claiming that it is a US bioweapon. Uncharacteristically, I find myself praising the European Union for flagging the campaign.

Nick talks about the ambiguity of the cyberattack on Norsk Hydro, and I raise the risk that companies may stop releasing attribution information pointing to nation states because doing so may undercut their insurance claims. 

Finally, we wrap up the story of ex-Uber autonomous driving executive Anthony Levandowski, who has pled guilty to trade-secret theft and is likely headed to prison for a year or three. 

If your podcast feed has suddenly become a steady diet of more or less the same COVID-19 stories, here’s a chance to listen to cyber experts talk about what they know about – cyberlaw. Our interview is with Elsa Kania, adjunct senior fellow at the Center for a New American Security and one of the most prolific researchers of China, technology, and national security. We talk about the relative strengths and weaknesses of the artificial intelligence ecosystems in the two countries.

In the news, Maury Shenk and Mark MacCarthy describe the growing field of censorship-as-a-service and the competition between US and Chinese vendors. 

Elsa and I unpack the report of the Cyberspace Solarium Commission. Bottom line: The report is ambitious but constrained by political reality. And the most striking political reality is that there hasn’t been a better time in 25 years to propose cybersecurity regulation and liability for the tech sector. Seizing the Zeitgeist, the report offers at least a dozen such proposals.

Nick Weaver explains the joys of trojanizing the trojanizers, and we debate whether that is fourth-party or fifth-party intelligence collection.

In a shameful dereliction, Congress has let important FISA authorities lapse, but perhaps only for a day or two (depending on the president’s temperature when the reauthorization bill reaches his desk). The bill isn’t good for our security, but it mostly consists of new ornaments hung on the existing FISA Christmas tree. 

Mark covers a Swedish ruling that deserves to be forgotten a lot more than the crimes and embarrassments protected by the “right to be forgotten.” This one fines Google for failing to cover up Sweden’s censorship with sufficient zeal.

Nick explains how Microsoft finds itself taking down an international botnet instead of leaving the job to the world’s governments.

Maury reports that a federal trial is exposing the seamy ties between the FSB and criminal Russian hackers. Now we know why Russia fought extradition of the singing hacker to the U.S.

Elsa helps me through recent claims that US chipmakers face long-term damage from the U.S.-China trade fight. That much is obvious to all; less obvious is what the U.S. can do to avoid it.

Nick and I talk about Facebook’s suit against NSO Group. I claim that NSO won this round in court but lost in the media, which has finally found a company it hates more than Facebook. Nick thinks Facebook is quite happy to swap a default judgment for a chance at discovery.

In other quick hits, the Department of Defense is wisely seeking a quick do-over in the cloud computing litigation involving Amazon Web Services and Microsoft. House and Senate committees have now okayed a bill to give the Cybersecurity and Infrastructure Security Agency much-needed and uncontroversial subpoena authority to identify at-risk Internet users. Rebooting my "Privacy Kills" series, I break the injunction against COVID-19 news to point out that dumb privacy laws likely delayed for weeks discovery of how widespread COVID-19 was in Seattle. And Joshua Schulte’s trial ends in a hung jury; I want to know where the post-trial jury interview stories are.

Download the 306th Episode (mp3).

Take our listener poll at steptoe.com/podcastpoll! 

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

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

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

The NSA’s use of call detail records to spot cross-border terror plots has a long history. It began life in deepest secrecy, became public (and controversial) after Edward Snowden’s leaks and was then reformed in the USA Freedom Act. Now it’s up for renewal, and the Privacy and Civil Liberties Oversight Board, or PCLOB, has weighed in with a deep report on how the program has functioned – and why NSA has suspended it. In this episode, I interview Travis LeBlanc, a PCLOB Member, about the report and the program. Travis is a highly effective advocate, bringing me around on several issues, including whether the program should be continued and even whether the authority to revive it would be useful. It’s a superb guide to a program whose renewal is currently being debated (against a March 15 deadline!) in Congress.

Our interview in this episode is with Glenn Gerstell, freed at last from some of the constraints that come with government service. We cover the Snowden leaks, how private and public legal work differs (hint: it’s the turf battles), Cyber Command, Russian election interference, reauthorization of FISA, and the daunting challenges the US (and its Intelligence Community) will face as China’s economy begins to reinforce its global security ambitions. 

In the news, Nate Jones and Nick Weaver talk through the new legal and technical ground broken by the United States in identifying two Chinese nationals and the $100 million in cryptocurrency they laundered for North Korean hackers.

Paul Rosenzweig lays out the challenge posed for the Supreme Court’s Carpenter decision by LocateX, which provides detailed location data commercially. This is exactly the quagmire I expected the Court to find itself in when it abandoned the third-party doctrine on a one-off basis. Nick points out that the data is only pseudonymized and tries with mixed success to teach me to say “de-pseudonymized.” 

Nate and I conclude that facial recognition has achieved a new level of infamy. Kashmir Hill at the New York Times adds a new drop of poison in a story that could just as well have repeated “I hate Clearview AI” 50 times for all it told us about the company. And Anna Merlan of Vice published a story about Clearview’s practices.

This is a bonus episode of the Cyberlaw Podcast – a freestanding interview of Noah Phillips, a Commissioner of the Federal Trade Commission. The topic of the interview is whether privacy and antitrust analysis should be merged, especially in the context of Silicon Valley and its social media platforms. Commissioner Phillips, who has devoted considerable attention to the privacy side of the FTC’s jurisdiction, recently delivered a speech on the topic and telegraphed his doubts in the title: “Should We Block This Merger? Some Thoughts on Converging Antitrust and Privacy.” Subject to the usual Cyberlaw Podcast injunction that he speaks only for himself and not his institution or relatives, Commissioner Phillips lays out the very real connections between personal data and industry dominance as well as the complexities that come from trying to use antitrust to solve privacy problems. Among the complexities: the key to more competition among social media giants could well be more sharing between companies of the personal data that fuels their network effects, and corporate sharing of personal data is what privacy advocates have spent a decade crusading against. It’s a wide-ranging interview, touching on, among other things, whether antitrust can be used to solve Silicon Valley’s censorship problem (he’s skeptical) and what he thinks of suggestions in Europe that perhaps the Schrems problem can be solved by declaring that post-CCPA California meets EU data privacy standards. Commissioner Phillips is bemused; I conclude that this is just Europe seeking revenge for President Trump’s Brexit support by promoting “Calexit.”

Download the 303rd Episode (mp3).

Take our listener poll at steptoe.com/podcastpoll! 

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

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

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