The Cyberlaw Podcast: A Small Door and Too Many Fat Men: Congress’s Tech Agenda

It’s that time again on the Congressional calendar. All the big, bipartisan tech initiatives that looked so good a few months ago are beginning to compete for time on the floor like fat men desperate to get through a small door. And tech lobbyists are doing their best to hinder the bills they hate while advancing those they like.

We open the Cyberlaw Podcast by reviewing a few of the top contenders. Justin (Gus) Hurwitz tells us that the big bipartisan compromise on privacy is probably dead for this Congress, killed by Senator Maria Cantwell (D-WA) and the new politics of abortion. The big subsidy for domestic chip fabs is still alive, Jamil Jaffer but beset by House and Senate differences, plus a proposal to regulate outward investment by U.S. firms that would benefit China and Russia. And Senator Amy Klobuchar’s (D-MIN) platform anti-self-preferencing bill is being picked to pieces by lobbyists trying to cleave away Republican votes over content moderation and national security.  

David Kris unpacks the First Circuit decision on telephone pole cameras and the fourth amendment. Technology and Fourth Amendment law is increasingly agoraphobic, I argue, as aging boomers find themselves on a vast featureless constitutional plain, with no precedents to guide them and forced to fall back on their sense of what was creepy in their day.

Speaking of creepy, the Australian Strategic Policy Institute (ASPI) has a detailed report on just how creepy content moderation and privacy protections are at TikTok and WeChat. Jamil gives the highlights.   

Not that Silicon Valley has anything to brag about. I sum up This Week in Big Tech Censorship with two newly emerging rules for conservatives on line: First, obeying Big Tech’s rules is no defense; it just takes a little longer before your business revenue is cut off. Second, having science on your side is no defense. As a Brown University doctor discovered, citing a study that undermines Centers for Disease Control and Prevention (CDC) orthodoxy will get you suspended. Who knew we were supposed to follow the science with enough needle and thread to sew its mouth shut?

If Sen. Klobuchar fails, all eyes will turn to Lina Khan’s Federal Trade Commission, Gus tells us, and its defense of the “right to repair” may give a clue to how it will regulate. 

David flags a Google study of zero-days sold to governments in 2021. He finds it a little depressing, but I note that at least some of the zero-days probably require court orders to implement.

Jamil also reviews a corporate report on security, Microsoft’s analysis of how Microsoft saved the world from Russian cyber espionage—or would have if you ignoramuses would just buy more cloud services. OK, it’s not quite that bad, but the marketing motivations behind the report show a little too often in what is otherwise a useful review of Russian tactics. 

In quick hits:

Gus tells us about a billboard that can pick your pocket: In NYC, naturally. 

• Jamil thinks we may have finally found Putin’s billions, through the magic of shared email addresses. 
• I offer a preview of the next U.S.-E.U. privacy spat, over sharing biometrics at the border. 

And David and I talk marijuana and security clearances. If you listen to the podcast for career advice, it’s a long wait, but David delivers Security Agency Counsel after a long series of acting General Counsels.