I know we promised to take August off, but I was inspired by the flap over the DNC hack and the fact that I’m at the Aspen Homeland Security Working Group meeting in Colorado. I waylaid two former intelligence community members on the Aspen campus and asked for their views on the DNC hack.  Well, to be accurate, I start the interview by asking whether Putin really has the balls to step into the US electoral campaign in this way.  Answering the question are two men with the perspective of long years dealing with Soviet and then Russian intelligence:  Charles Allen, who became intelligence chief for DHS after a full career at CIA, and John McLaughlin, who ended his career at CIA as the Deputy Director and Acting Director.

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

If Vladimir Putin can do it, so can we. This week the podcast dives deep into the US presidential campaign.

I of course talk with Maury Shenk about evidence that the Russians are behind “Guccifer 2.0” and the DNC data leak – aided by a Wikileaks that looks more and more like an FSB front.  I compare the largely indistinguishable Dem and GOP platform planks on encryption ‒ and draw a lesson from the straddles:  there’s little doubt that every lobbyist who contributed to the platforms was working for Silicon Valley, so the failure to endorse the Valley’s view may spell trouble for techie triumphalism.  I also spike the football for the Justice Department, whose policy views on the dangers of hacking back were swamped when the GOP called for letting victims of hacking have their way with the hackers.

Our interview this week touches on the insider threat. Andy Irwin describes the new DOD rule requiring contractors to devise insider monitoring plans for cleared personnel, and two industry leaders, Ed Hammersla, CSO of Forcepoint, and Brian White, COO of RedOwl Analytics, talk about what technology can do to spot incipient employee defections and data theft.  A discussion of the role of natural language processing naturally reminds me of George Carlin and the seven dirty words you can’t say on the radio.

In other news, Katie Cassel unpacks another in a long line of increasingly incoherent 9th Circuit rulings on when it violates the CFAA for unwanted visitors to log on to a site.  Katie also explains why the outcome of another data breach lawsuit might persuade Scottrade to change its name to Scot-Free.

Maury updates us on UK politics, from Theresa May’s honeymoon to the possibility that UK data retention law will survive review in the European Court of Justice.  I flag a good (and, sadly, already outdated) House Homeland Security Committee report on 100 ISIS-linked terror plots against the West since 2014, a surprise reprieve for Silent Circle, and Whatsapp’s continuing “If it’s Tuesday we must be shut down; if it’s Wednesday we must be back up” drama in Brazil.

As always, the Cyberlaw Podcast welcomes feedback.  Send 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.

In the news roundup, Michael Vatis covers Microsoft’s surprising Second Circuit victory over the Justice Department in litigation over a warrant for data stored in Ireland.  The hidden issue in that case was data localization – the same issue driving the Justice Department’s new legislative proposal to allow foreign nations to obtain information from US data repositories.  That proposal is unpacked by special guest David Kris, former Assistant Attorney General for National Security and author of the treatise, National Security Investigations and Prosecutions.

In other news, LabMD has found yet another defendant in its campaign against Tiversa.  Michael discusses what may be the first judicial decision requiring a warrant to use a Stingray to locate a criminal suspect.  And HHS tries to achieve a plausible policy goal with an overreaching legal interpretation; as Michael explains, the result could be massive unintended consequences.

In quick hits:  more evidence that foreign nations are targeting our energy grid, FDIC engages in a surprisingly successful breach cover-up, a Chinese browser sends data back to China unmolested (all because we still haven’t funded the Europocrisy Prize, I argue), and the cyberwar on ISIS is going slowly, mainly, I argue, because cyberwar on ISIS is not all that good an idea.

What’s the argument in favor of hacking back that is best calculated to infuriate the State Department?  We talk hackback with the father and son team that produced a thoughtful paper on the topic for the Hoover Institution.  Jeremy, a law professor at the Scalia Law School, and his son, Ariel Rabkin, a computer scientist out of Berkeley, have the expertise to deal gracefully and concisely with the policy debate over hacking back.  Their proposal charts a middle ground while cheerfully eviscerating State’s hand-wringing about the international consequences of permitting hacking victims to act outside their networks.  Bonus feature:  lifetime career advice from yours truly!

Our interview is with Jeremy Rabkin and Ariel Rabkin, author of Hacking Back without Cracking Up, published by the Hoover Institution.

As always, the Cyberlaw Podcast welcomes feedback.  Send 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.

What’s the difference between serving in Congress and spying in the back alleys of a Middle Eastern bazaar?  Why not ask the one Congressman who’s done both – Rep. Will Hurd (R-TX).  He also has cybersecurity chops from his career in industry, so he makes the perfect guest for episode 124a of the podcast.  Just running through his week takes us from the difficulty of setting red lines in cyberspace to what we know about foreign penetration of the Clinton email server.  But we manage as well to cover the declining fortunes of the Massie-Lofgren amendment and the reasons (and possible cures) for the disaster that is federal IT procurement.

As always, the Cyberlaw Podcast welcomes feedback.  Send 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.

This week’s news roundup is dominated by the Ninth Circuit and the European Union.  The EU parliament has approved the Privacy Shield that replaces the Safe Harbor.  Michael Vatis, Alan Cohn and I ask whether companies should seek protection under what may prove to be a pretty leaky Shield.  And the EU has approved cybersecurity rules for critical industries and verdammte amerikanische Unternehmen … er, digital service providers.  You may not like the EU penchant for regulation as a first resort, but Alan and I conclude that the initiative on cybersecurity standard-setting may finally have moved to Brussels.

In Ninth Circuit news, the Nosal case has come back for another round of appellate decision-making, and this time the decision goes against Mr. Nosal.  Michael and I debate whether sharing a password should lead to criminal penalties.  In other news, the lib/left continues its campaign to impose a warrant requirement on reuse of section 702 data.  They’ve already lost in two courts, and my guess from oral argument in US v. Mohammud is that they won’t do better in the third.  

Elsewhere, Russia has finally adopted its aggressive new law regulating digital service providers in the name of fighting terrorism. The FCC privacy regs attract some support from other agencies, notably the FBI and Secret Service.  Silent Circle, already silently circling the drain, has dropped its faddish warrant canary “for business reasons.”  And kudos to Yingmob for its new business model; the Chinese company seems to have combined legitimate adtech business lines with a line of malware that has infected ten million Android phones.  No word yet on whether Yingmob employees can take a break from writing malware to play foosball.  

Our interview with Will Hurd will follow later in the week.

As always, the Cyberlaw Podcast welcomes feedback.  Send 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.

Edward Snowden criticizes Russia’s mass surveillance law, and a Russian official retaliates by outing him ‒ as a Russian intelligence source. Silent Circle, the phone company that built its marketing on fear and loathing of the NSA, is nearing bankruptcy. And members of the dominant European Parliament faction are asking the Commission, “Hey! How come you keep demanding more data export and privacy concessions from the US without asking for bupkis from China?” And the FBI now has three politically viable paths to win back authority to obtain electronic communications transaction records with a National Security Letter.

Truly, episode 123 feels like a reward for living through 2013.

In other news, Alan Cohn and Katie Cassel report on the Bank for International Settlements’ surprisingly sophisticated cybersecurity standards. I whinge about Bob Litt’s 18 pages of binding commitments to Europe on how the US will conduct intelligence from now on. Alan and I compliment CBP on its technical savvy in easing border clearance ‒ and ponder the role of stools in protecting the homeland.

I report that Belgian courts have reversed a verdict by the local DPA against Facebook, and Maury Shenk comments on broader implications for EU data protection. Katie notes that FTC commissioner Maureen Olhausen continues to tout the advantages of her agency’s “flexible” privacy and security standard and to diss the FCC’s more explicit approach. I mock the ACLU for demanding the right to violate criminal law to get information from private companies and ask if I can do the same to get the ACLU to answer my questions about whether it provides real security for its clients. And Maury reports that China is still rolling out new internet regulations, from online search standards to where to store Chinese citizens’ personal data (China, natch).

As always, the Cyberlaw Podcast welcomes feedback. Send 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.