That’s the question I had after reading Law and Policy for the Quantum Age, by Chris Hoofnagle and Simson Garfinkel. It’s a gracefully written and deeply informative look at the commercial and policy prospects of quantum computing and several other (often more promising) quantum technologies, including sensing, communications, and networking. And it left me with the question that heads this post. So, I invited Chris Hoofnagle to an interview and came away thinking the answer is “close to half – and for sure all the quantum projects grounded in fear and envy of the presumed capabilities of the National Security Agency of the United States.” My exchange with Chris makes for a bracing and fast-paced half hour of futurology and policy and not to be missed.

Also, not to be missed: Conservative Catfight II—Now With More Cats. That’s right, Jamil Jaffer and I reprise our past debate over Big Tech regulation, this time focusing on S.2992, the American Innovation and Choice Online Act, just voted out of the Senate Judiciary Committee with a bipartisan set of supporters and detractors. In essence, the bill would impose special “no self-preferencing” obligations on really large platforms. Jamil, joined by Gus Hurwitz, thinks this is heavy handed government regulation for a few unpopular companies, and completely unmoored from any harm to consumers. Jordan Schneider weighs in to point out that it is almost exactly the solution chosen by the Chinese government in its most recent policy shift. I argue that platforms are usually procompetitive when they start but inherently open to a host of subtle abuses once entrenched, so only a specially crafted rule will prevent a handful of companies achieving enormous economic and political power.

Doubling down on controversy, I ask Nate Jones to explain Glenn Greenwald’s objections to the subpoena practices of Congress’s  Jan. 6 Committee. I conclude that the committee’s legal arguments boil down to “When Congress wrote rules for government, it clearly didn’t intend for the rules to apply to Congress.” And that Greenwald is right in arguing that the Supreme Court in the 1950s insisted that Communists be treated better than the Jan. 6 Committee is treating anyone even tangentially tied to the attack on the Capitol.

Nate and I try to figure out what Forbes was smoking when it tried to gin up a scandal from a standard set of metadata subpoenas to WhatsApp. Whatever it was, Forbes will need plenty of liquids and a few hours in a dark quiet room to recover.

In quick hits, Gus explains what it means that the Biden administration is rewriting the Department of Justice/Federal Trade Commission merger guidelines: essentially, the more the administration tries to make them mean, the less deference they’ll get in court. And Jordan and I puzzle over the emphasis on small and medium business in China’s latest five-year plan for the digital economy.

Download the 391st 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.

Just one week of antitrust litigation news shows how much turbulence Facebook and Google are encountering. Michael Weiner gives us a remarkably compact summary of the many issues, from deeply historical (Facebook’s purchase of Instagram) to cutting edge tech (complaints about Oculus self-preferencing). In all, he brings us current on two state attorney general cases, two Federal Trade Commission cases and one Department of Justice case against the twin giants of surveillance advertising. 

Speaking of litigation, no major new technology has been greeted with more litigation in its infancy than face recognition. So this week we interview Hoan Ton-That, CEO of what must be the most controversial tech startup in decades—Clearview AI. We probe deeply into face recognition’s reputation for bias, and what the company is doing about it. Hoan is clearly taking the controversy in stride and confident that the technology will overcome efforts to turn it toxic. Meanwhile, I note, the debate is clearing out what would have been formidable competition from the likes of Microsoft, Amazon and IBM.  If you think face recognition should be banned as racist, sexist and inaccurate, this interview will make you think.

Meanwhile, David Kris notes, rumors of war are rampant on the Russian-Ukrainian border—and in cyberspace. So far, it’s a bit of a phony cyberwar, featuring web defacing and dormant file wipers. But it could blow up at any time, and we may be surprised how much damage can be done with a keyboard. 

Speaking of damage done with a keyboard, open source software is showing how much damage can be done without even trying (although some developers are in fact trying pretty hard). Nick Weaver and I dig into the Log4j and other messes, and the White House effort to head off future open source debacles. 

David is in charge of good news this week. It looks as though Russia has arrested a bunch of REvil co-conspirators, including one person that the White House holds responsible for the Colonial Pipeline attack. It’s surely not a coincidence that this hint of cooperation from Vladimir Putin comes when he’d very much like to have leverage on the Biden administration over Ukraine.

The EU is now firmly committed to cutting off the continent from a host of technologies offered, often free, by Silicon Valley. Google Analytics is out, according to Austrian authorities, even if this means accusing the European Parliament of violating European law. Nick reminds us that this isn’t all the services that could be cut off. Google Translate also depends on transatlantic data flows and could become unavailable in Europe. I offer an incendiary solution to that problem. 

Secure messaging is still under attack, but this week it’s European governments taking the shots. The UK government is planning an ad campaign against end-to-end encryption, and Germany is growling about shutting down Telegram for allowing hate speech. Nick issues a heartfelt complaint about the disingenuity of both sides in the crypto debate.

Speaking of Germans who can’t live up to their reputation on protecting privacy, Nick notes that German police did exactly what Gapple feared, using a coronavirus contact-tracing app to find potential witnesses. Meanwhile, in good news, let’s not forget Twitter, whose woke colonialism led it to suspend Nigeria’s president for threatening secessionists with war. Turns out it was easier to go to war with Twitter, which has now unconditionally surrendered to the Nigerian government. 

Finally, I claim kinship with Joe Rogan as one of the podcasters that bien pensant NGOs and academics hope to censor. My plan is to create a joint defense fund to which Joe and I will each contribute one percent of our podcasting revenues.

Download the 390th 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 Federal Trade Commission’s (FTC) other foot, I argue, is lodged firmly in its mouth. Tatyana Bolton defends the agency, which released what can only be described as a regulatory blog post in response to the log4j vulnerability, invoking the $700 million in fines imposed on Equifax to threatening “to use its full legal authority to pursue companies that fail to take reasonable steps to protect consumer data from exposure as a result of Log4j.” She stresses that this is the best way to get companies to patch quickly and notes that only “reasonable steps” are required. I think we’ll hear that a lot from the FTC, now that it turns out that fixing the Log4j mess is going to require a lot more that regulatory flexing. Especially, since the FTC’s blog post seems to pull back from its tough-guy pose when talking about the open source maintainers who actually have to do much of the patch generation; unlike the companies it threatened with wrath, the FTC understands that open source coders “don’t always have adequate resources and personnel,” something the FTC “will consider as we work to address the root issues that endanger user security.”

Speaking of fallible regulators, Glenn Gerstell gives us a tour of China’s tech regulatory landscape, and the remarkable decline in the fortunes of consumer tech firms in that country, as the New York Times covered in detail last week. Is that good news for Silicon Valley or U.S. competitiveness? Sadly, probably not, I conclude.

Mark MacCarthy explains why the proposal to marry cryptocurrency to Signal is causing angst among Signal’s supporters about the end-to-end encrypted service’s ”regulatory attack surface.”

Glenn covers the latest story about security risks and telecom gear from China.

Mark and I dig into the growing enthusiasm for regulating big Silicon Valley companies as gatekeepers. The Germans are about to apply that approach to Google. And the South Koreans are doing the same to Apple and its app store payment policies.

Tatyana notes the press coverage about possible tensions between two talented and strong cybersecurity officials in the White House: Anne Neuberger and Chris Inglis. I put Glenn on the spot about claims that Anne has “a particular tendency to clash with lawyers.” That would only make me love her more, but Glenn (who, as the National Security Agency’s top lawyer, worked with her for years) absolves her of the charge.  

Mark and I handicap the probability that the plaintiff will succeed in a highly charged lawsuit against Facebook/Meta Platforms for bringing together the boogaloo conspirators who killed a federal protective officer. It’s a long shot, but if “negligent design” turns out to create liability for software and algorithms, Signal will have an even greater attack surface than its fans are worried about.

Glenn explains the charges brought in China against Walmart for breaches of cybersecurity laws (hint: it’s mostly not breaches of cybersecurity laws). Speaking of surprises that aren’t surprises, Glenn also covers the announcement by Lloyd’s of London that cyber insurance won’t cover cyberattacks attributable to nation-states.

Finally, I devote a few minutes to rant about the Justice Department’s decision to expand charges against Joe Sullivan, Uber’s former chief information security officer, for his role in payment of “bug bounties” to hackers who looked more like crooks than bounty hunters. More than a year after charging Sullivan with obstruction of justice, the department piled on new charges of wire fraud for failing to tell Uber’s drivers about the breach. Glenn and I both question the decision to do this without any new facts to base the charges on. And I point out that the result of exposing breach response into wire fraud charges will (or should be) fatal to the FBI’s desire to be called in while companies are dealing with breaches. If the company delays notice to the public for longer than the government thinks proper, wire fraud charges start to hang heavy in the air. If so, why would any general counsel want to have an FBI agent sitting in the room for the debate about when notice to customers is required?

Download the 389th 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.

One of the good things about coming back from Christmas break are all the deep analyses that news outlets save up to publish over the holidays—especially those they can report from countries where celebrating Christmas isn’t that big a deal. At least that’s how I account for the flood of deep media dives on China technology issues. Megan Stifel takes us through a couple. The first is a Washington Post article on China using its tools for measuring internal dissent online and focusing them on the rest of the world. The second is a New York Times article that tells us what tools the Chinese government can use when the rest of the world says things it doesn’t like. Utterly unsurprising, to me at least, is that social media companies like Twitter have become hapless enablers of China’s speech police. Later in the podcast, Megan covers another story in the same vein—the growing global unease about China’s success in building Logink, a global logistics and shipping database.

Scott Shapiro and Nick Weaver walk us through the conviction of a Harvard professor for lying about his China ties. It may be too cynical to say that the Justice Department wanted Professor Charles Lieber especially badly because he’s not Asian, but there’s no doubt he’ll be Exhibit A when it defends the China Initiative against claims of ethnic profiling.

Megan takes us through another great story of hack-enabled great story of hack-enabled insider trading, helicopters to Zermatt, dueling extraditions and as the piece de resistance, hints we may learn more about Russian interference with the 2016 presidential election.  

Scott explains how Apple AirTags are being used to track people. Nick gives us a feel for just how hard it is to separate good from bad in designing Air Tags. I suggest that this is a problem we could leave to the plaintiffs’ lawyers. 

Nick lays out the economics of hacking as a service and introduces us to yet another company in that business—Cytrox. No one seems to last long in the business without changing their name. Nick and I explore the reasons for that, and the possibility that soon the teams that work for these companies will move on every year or two. 

Nick also explains why bitcoin isn’t always a cybercriminal’s best friend. It turns out that cryptography isn’t proof against rubber hose cryptanalysis, or maybe even plea bargaining. 

Drawing from research I’m doing for an article about why bias in face recognition has been overblown, I note that Canada, France and the entire Western world is imposing sanctions on Clearview AI for privacy violations, but Clearview AI is the only U.S. company doing as good or better at face recognition than Chinese and Russian suppliers. I argue that’s because a dubious bias narrative has forced IBM, Amazon, Microsoft and Meta to retreat from the market, leaving us at the mercy of Russian and Chinese tech. 

Megan explains why financial regulators and not the FBI turn out to be the biggest enemies of end-to-end encryption, as they fine JPMorgan Chase a cool $200 million for using WhatsApp and other unbreakable encrypted messaging systems.

Finally, in quick hits,

• I point out that soft power isn’t always America’s friend, as shown by Intel’s apology to the Chinese public for obeying U.S. law, Apple’s determination to double down on a Chinese supply chain, and a SenseTime IPO that was enormously successful for everyone except U.S. sanctions and U.S. investors.
• Scott shows the remarkable erosion of Silicon Valley’s power in its conflicts with Putin’s Russia. Google and Meta are facing huge fines for not taking down content Russia doesn’t like. And the Russians whose content they have taken down are winning big judgements in Russia—so big that I’m expecting Breitbart to bring their next Big Tech censorship lawsuit in Moscow.

Download the 388th 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.