Steptoe Cyberlaw Podcast (general)

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 EDT

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 EDT

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 EDT

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 EDT

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 EDT

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 EDT

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 EDT

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 EDT

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 EDT

In this week’s episode, we guess at the near-term future with Betsy Cooper and Steve Weber of UC Berkeley’s Center for Long Term Cybersecurity. In all of their scenarios, the future is awash in personal data; the only question is how it’s used. I argue that it will be used to make us fall in love—with our machines.

In the news of the week, we explore the policy consequences of President-elect Trump’s personnel choices. I point out that the quickest route to the new administration’s short list seems to be an interview on the Steptoe Cyberlaw Podcast.

The internet advertising industry is trying to stamp out ad malware so that firms following a set of guidelines will earn a seal of approval Katie Cassel explains. Color me skeptical: would you buy an antivirus product that proclaimed that it scans “a reasonable percentage of” incoming code?

It’s apparently guidelines week in cybersecurity-land, as agencies rush to release their work before the transition. Two agencies issued guidelines on security practices. The Department of Homeland Security released the recommendations for internet-connected devices that Rob Silvers forecast on the podcast last month. Alan Cohn summarizes the principles, which include steps like security by design and regular vulnerability patches. Meanwhile, Katie tells us, NIST has released its  guidance for small business network security. We compare its guidance to the FTC’s. NIST wins.

Two Chinese Android phone backdoors have emerged in one week. Researchers at Kryptowire have uncovered a secret backdoor in large numbers of Android phones that ships users’ personal data, including their SMS messages and location, back to China. The company responsible, Shanghai Adups Technology Company, says it was a mistake, and that the software wasn’t supposed to be installed on phones for sale in the US.  Or perhaps the mistake was in getting caught. Investigations will follow, one hopes.

The second backdoor is an unsecured firmware upgrade channel that would allow a man-in-the-middle to add arbitrary code to an upgrade. I point out that Apple uses the same backdoor—just better secured—for the same purpose.  So its claim that it’s fighting the FBI to protect us from backdoors and their security risks is balderdash.

The 1990s have called, and they want their competition policy back. At least that seems to be the gravamen of Kaspersky’s complaint that Microsoft Defender is killing third party antivirus companies.

In other news that isn’t new, the effort to override Rule 41 changes still looks as dead as General Franco. That doesn’t mean that a forlorn left-right coalition will give up, of course, since there is still sympathetic lib/left press coverage to be milked from the issue.

Finally, in a sign of just how serious the cybersecurity crisis is, almost 2 in 5 American adults said they would give up sex for a year in exchange for never having to worry about being hacked.

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-139.mp3
Category:general -- posted at: 10:32am EDT