Steptoe Cyberlaw Podcast (general)

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 EDT

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 EDT

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 EDT

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 EDT

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 EDT

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 EDT

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