Our guest this week is Bob Litt, the General Counsel of the Office of the Director of National Intelligence.  Bob has had a distinguished career in government, from his clerkship with Justice Stewart, his time as a prosecutor in the Southern District of New York and at Main Justice, and more than five years in the ODNI job. 

This week in NSA:  The latest fad in news coverage of the agency is a hunt for possible conflicts of interest in its leadership.  And it’s having an effect.  Two high-ranking NSA seniors, the CTO and the head of signals intelligence have recently left positions that drew scrutiny for getting too close to private industry.  I ask Bob whether we should be pleased or worried about the trend toward individual converts to Islam carrying out random attacks with whatever weapon comes to hand.  Prudently, he refuses to be drawn into my comparison of Islamists to the Manson Family.  We debate whether the USA Freedom Act has a chance of passage in the lame duck Congress – and whether it should, focusing among other things on how the act’s FISA civil liberties advocates would function and what ethical rules would govern their day jobs.  

And we explore another ODNI project – implementing the President’s directive on protecting the privacy of foreign nationals while gathering intelligence.  Are the nation’s spies really required to wait until a foreign target’s speech goes beyond what the first amendment protects before they collect and analyze the remarks?  Will the requirement for advance justification for collection projects institutionalize risk aversion at NSA?  And can government officials look forward to intelligence reports that read like this: “[SYRIAN NATIONAL 1] asked [IRAQI NATIONAL 1] to kill [US PERSON 1]”?

Our news roundup begins with the sudden press interest in possible conflicts of interest in NSA’s leadership.  The Supreme Court takes another privacy case – one with no obvious federal connection.  Lots of city ordinances require hotels to keep guest registries – and to let the police inspect those registries on demand.  But the 9th circuit recently held en banc that these laws touch the privacy interests of the hotel owner, not just the guests, and that the laws are unconstitutional if they offer no opportunity for prior judicial review of the police demand.  Just what we need:  another opportunity for the Roberts Court to pad a narrow ruling with a lot of ill-considered dicta about Smith v. Maryland.

Harking back to last week’s interview with Tom Finan about insurance coverage for cyber incidents, we discover that where there’s insurance coverage there are also insurance coverage disputes. The head of Steptoe’s insurance coverage practice explains the P.F. Chang dispute with Travelers Insurance and hints that it’s in the first wave of what could be thirty years of litigation. Not that there’s anything wrong with that.

FBI Director Comey isn’t alone in complaining about Silicon Valley’s reluctance to help law enforcement.  Leslie Caldwell, the new head of the Justice Department’s criminal division, has joined the chorus. 

According to the Stored Communications Act, companies like Google may not provide the contents of emails in response to subpoenas.  So what do civil litigants do when they need access to Gmail accounts in, say, divorce cases?  The usual solution is for the court with jurisdiction over the civil suit to order the litigants to “consent” to the disclosure of their email messages.  But is court-ordered consent really consent?  According to a California appeals court, it is. Michael explains.

Whoa!  The FCC really is taking cybersecurity seriously.  It’s proposing $10 million in fines for two carriers who stored hundreds of thousands of “Obamaphone” beneficiaries’ personal data on a server accessible by anyone on the internet.

Confusion over when you need a warrant to get third party information continues to roil the courts.  The Florida Supreme Court raises the bar for cell-site location data.  And the NJ AG plots a counter-attack on a billing record warrant requirement in the Garden State.  Michael suggests a new feature to keep all the litigation straight:  This Week in Smith v. Maryland.

Lawyers with banks for clients have a new reason to upgrade their cybersecurity.  As the banks struggle with increasingly sophisticated intrusions, they’re sharing the pain, demanding that their contractors and suppliers adopt stronger cybersecurity.  Law firms are expressly included, since they’ve been targeted frequently for what inevitably will be called “bank shot” intrusions.

We remind everyone that the Steptoe Cyberlaw Podcast welcomes feedback, either by email (CyberlawPodcast@steptoe.com) or voicemail ( +1 202 862 5785).

Our guest today is Tom Finan, Senior Cybersecurity Strategist and Counsel at DHS’s National Protection and Programs Directorate (NPPD), where he is currently working on policy issues related to cybersecurity insurance and cybersecurity legislation. Marc Frey asks him why DHS, specifically NPPD, is interested in cybersecurity insurance, what trends they are seeing in this space for carriers and other stakeholders, and what is next for their role in this space. He is incredibly forthcoming in his responses and even asks listeners to email him with their feedback.      

This week in NSA: The House and Senate Judiciary chairs call for action on USA Freedom Act.  And nobody cares. We conclude that the likelihood of action before the election is zero, and the likelihood of action in a lame duck is close to zero. But next week we’ll be interviewing Bob Litt, one of the prime negotiators for the intelligence community on this issue, and he may have a different view.

The Great Cable Unbundling seems finally upon us, as several content providers announce that they’re willing to sell content direct to consumers over the Internet. Does that mean more support for net neutrality? Not necessarily. Stephanie Roy explains.

Are parents responsible for what their adolescent kids do and say on Facebook? That makes sense, if you’ve never had adolescent kids. Maybe that explains why Michael Vatis sees merit in the Georgia appellate court decision finding potential liability. It reversed the trial court, which had granted summary judgment in favor of the parents of a kid who set up a fake and defamatory Facebook page in the name of a classmate he hated. The facts are a little odd. The kid who set up the page never took it down, even after he’d been caught and punished by school and parents. The appeals court thought that the parents had a “supervisory” obligation to make their child delete the fake account, and that they could be held liable for negligently failing to do so. It’s quite possible, though, that everyone in this case is a Privacy Victim; the issue could have been hashed out with a phone call from the parents of the victim to the parents of the perpetrator, but according to the press, “the child’s parents didn’t immediately confront the boy’s parents because their school refused to identify the culprit.” Because privacy.

FBI Director Comey comes out swinging for CALEA reform, saying in a speech at Brookings that the law needs to be updated to require cooperation from makers of new communications systems when the FBI has a court order granting access to those systems. 

When it comes to regulating on other topics, though, the Justice Department is a little less restrained; it has opened the door to a round of new disability claims against websites, offering a roadmap to what it thinks the law requires.

The right to be forgotten is attracting more flak in Europe, as the BBC announces a competing “right to remember” website devoted to publicizing stories that Google has delinked. It’s Auntie BBC v. Nanny Europe. Cue popcorn. Unhappily, a “progressive” group most famous for relentlessly sliming Google on privacy issues has urged the search engine to bring the right to be forgotten  to the United States. Sigh.

In breach news, TD Bank pays $850,000 to the state AGs over a “breach” that may never have happened. TD lost a backup tape in transit, and the data wasn’t encrypted. Was anyone’s data actually compromised by the loss of the tape? The AGs don’t say. They just want their money. And they get it. 

The Russians are getting sloppy, or maybe they’re taking a leaf from China’s book – figuring it doesn’t matter if they get caught. And caught they have been, by iSight Partners, which reports that Russian hackers used a Microsoft zero-day to target Western governments and Ukraine.  Meanwhile, the FBI is warning about another and even more sophisticated set of Chinese government hackers. And hackers are now adding a new form of targeted attack to their arsenal - a tactic that combines spearphishing with watering hole attacks. They’re targeting ads at users that take them to a compromised website that serves malware.

And, in good news for privacy skeptics, the Video Privacy Protection Act gets a narrow reading.

We remind everyone that the Steptoe Cyberlaw Podcast welcomes feedback, either by email (CyberlawPodcast@steptoe.com) or voicemail ( +1 202 862 5785). 

Our guest for the podcast is Shaun Waterman, editor of POLITICO Pro Cybersecurity. Shaun is an award-winning journalist who has worked for the BBC and United Press International; and an expert on counterterrorism and cybersecurity.

We begin as usual with the week’s NSA news. NSA has released its second privacy transparency report. We’ve invited Becky Richards, NSA’s privacy and civil liberties watchdog, on the program to talk about it, so I’m using this post to lobby her to become a guest soon: Come on in, Becky, it’s a new day at the NSA!

Laura Poitras’s new film about Snowden gets a quick review. We question the hyped claim that there’s a “second leaker” at NSA; most of the leaked information described in the film was already pretty widely known. 

Two more post-Snowden pieces of litigation are also in the news. As promised, we dig deeper into the Justice Department’s botched handling of the notice that must be given to parties on the receiving end of FISA taps and section 702 of FISA. As often turns out to be the case, the Justice Department develops a limp, and all the other agencies have to put stones in their shoes: It looks as though OFAC is going to be dragged into this comedy of errors. 

The second piece of litigation began as a humdrum piece of FOIA litigation (though with a bit of Glomar for spice). It has now has produced a much more interesting result: Judge Pauley, ordinarily a good friend to the government, declares that he has lost confidence in the Justice Department’s representations about the risks of releasing FISA opinions; he insists on reviewing the FIS court’s opinions himself in camera to decide what can be released.

In other national security litigation, we all know that a canary can emit a twitter, but can Twitter emit a canary? The social media giant is going to court to get approval for its “warrant canary,” claiming a first amendment right to list the orders it has not (yet) received under national security surveillance laws.  Meanwhile, on the opposite coast, the government’s authority to issue gag orders in national security letters is argued before the Ninth Circuit, which seems to find the issue at least a little troubling.

Maybe it’s a coincidence, but just as Europol is raising the possibility that the internet might be used to kill people, the FDA is trying to do something about it, issuing cybersecurity guidelines for manufacturers. We damn them with faint praise, note that our refrigerators have been trying to kill us slowly for years, and wonder when the National Highway Safety Administration will issue security guidelines for self-driving cars.

The pendulum may be swinging toward privacy in the US but it swings hard the other way in the Southern Hemisphere. First New Zealand gives Snowden a swift kick and now the Australian government is enacting surveillance reforms that increase government authority to conduct national security intercepts.

There’s a bit of good news in our update on the right to be forgotten. The European Commission has poured cold water on the European Court of Justice, hinting strongly that the court’s enthusiasm for sacrificing free expression is a bad idea. Sad to say, though, the notion seems as communicable as Ebola; even Japan is getting in the act, as a Tokyo court orders Google to take down search links at the request of an individual. 

The prize for Dumbest Judicial Opinion of the Month goes (where else?) to the Ninth Circuit, which expressed shock and dismay over the idea that a Navy investigator conducted “surveillance of all the civilian computers in an entire state” in the course of looking for military personnel trading child porn. Turns out that the investigator in question simply looked at images being shared publicly online using a common file-sharing program, Gnutella. And when he had the IP address of someone sharing child porn images he checked to see if the suspect worked for the military. When that turned out not to be the case, he turned the information over to civilian law enforcement, giving the Ninth Circuit a severe case of the vapors and ultimately leading to exclusion of the evidence. Because posse comitatus. You won’t want to miss my translation from the Latin.

We unpack the controversy over Ross Ulbricht and how the FBI managed to captcha him. And we congratulate the FCC for a regulatory action near and dear to anyone who’s ever paid too much for bad Wi-Fi in a good hotel.

Finally, we remind everyone that the Steptoe Cyberlaw Podcast welcomes feedback, either by email (CyberlawPodcast[at]steptoe.com) or voicemail (+1 202 862 5785). And to prove it, I read a message from Dick Mills, a libertarian blogger who started out tagging me as the Great Satan of statism but ended by admitting that the podcast occasionally changed his mind. We can’t ask for more than that.

Our guest today is Rob Corbet, a partner and head of the Technology & Innovation group in Arthur Cox, a large Irish law firm.   Ireland is a uniquely important jurisdiction for US companies dealing with data protection issue.  I ask whether Ireland’s role is going to become more or less powerful under the proposed revision, and we talk about the replacement of its longstanding data protection commissioner.   

This week in NSA:   NSA is getting ever thinner, but there is still a knock-on effect from the Snowden revelations, which is now complicating the way Treasury designates people and institutions for sanctions.  This is a complex tale, and we will dig deeper into it next week.  

Web publishers are taking it on the chin everywhere.   Russia has told Google, Twitter, and Facebook to register under Russian law and submit to Russian regulation, including local storage of Russian data.  And the EU Article 29 Working Party is working on how to implement the right to be forgotten, combining its usual ineffectual bureaucratics with politically correct misrepresentations. Bet you didn’t know that the right to be forgotten isn’t censorship, apparently because you’re being censored first by companies, then by “independent” data protection agencies, and finally by the courts. That’s not censorship, say European regulators, it’s “balancing.” I’m reminded of Mary McCarthy, who famously said of Lillian Hellman, “Every word she writes is a lie, including “and” and ‘the’.” (Meanwhile the New York Times announces that it’s been hit by the right to be forgotten, with several of its stories going down the memory hole.) 

 In the US, the attack on web publishers is taking a different form, but it’s no less effective.  When Apple screws up and allows the disclosure of celebrity nude photos, it’s Google that gets hit with the threat of a $100 million lawsuit, on grounds that are half copyright, and half a kind of right to be forgotten.  Google immediately surrenders, claiming that it’s taken down links to the photos.   

 Finally, in the most troubling cybersecurity news of the month, maybe the year, JP Morgan acknowledges a deep penetration of its computer networks by sophisticated hackers – quite possibly aided by the Russian government.  Exactly what the hackers took and what they intended is still not clear, something that makes the intrusion more ominous not less, raising as it does the possibility that Russia intends to impose its own style of financial sanctions on the United States.   

All of which raises the question whether JP Morgan should protect itself by adding a “Herod clause” to its terms of service:  anyone accessing the site without authority automatically surrenders custody of his firstborn.  If it worked for F-Secure’s free wi-fi service, maybe it will work for cybersecurity.

The Cyberlaw Podcast is now open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com.   If you’d like to leave a message by phone, contact us at +1 202 862 5785.

Download the thirty-seventh episode (mp3).

Subscribe to the Cyberlaw Podcast here. We are also now on iTunes and Pocket Casts!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

Our guest today is Admiral David Simpson, Chief of the FCC’s Public Safety and Homeland Security Bureau.  Admiral Simpson has more than 20 years of Information and Communications Technology experience supporting the Department of Defense.  Adm. Simpson is joined by Clete Johnson, his Chief Counsel for Cybersecurity.  The interview digs deep into Chairman Wheeler’s cybersecurity initiative, asking among other things exactly how voluntary it will be, what telecom companies can do to stop DDOS attacks, and what CSRIC really stands for. 

It’s getting harder and harder to find new NSA stories, which must be a relief to the agency.  Last week, the only news was NSA’s decision to name Anne Neuberger its Chief Risk Officer.  Anne is an able woman who knows the outside world better than practically anyone at the agency, but I can’t shake the feeling that what the agency wants is a Chief Risk-Aversion Officer. 

In other news, how to handle location data after Riley continues to bedevil the circuit courts, but the Fifth Circuit seems to have come to a surprisingly reasonable result, holding that users don’t have a reasonable expectation of privacy in the cell-site data that they give the phone company so it can connect calls to them. 

Adm. Simpson and I dig into three stories that are more technical than legal but which will all have legal fallout soon:   It turns out that Apple may have known about the iCloud security flaw that enabled disclosure of nude celebrity photos for as long as six months before the hack.  The Shellshock bug debunks the notion that open-source is inherently more secure than proprietary code, and it means that anyone who has built their business on Linux should be scrambling (that means you, Apple and Google). And the financial industry launches a real-time information-sharing program that will finally test-drive the vision underlying the bills that Congress has been trying to pass for years.

In retaliation for Western sanctions, Russia is advancing the date for mandatory social media data localization.  Meanwhile, Google’s staggering potential liability for “wiretapping” publicly broadcast Wi-Fi signals has led to an interesting discovery fight, with the self-proclaimed victims of the wiretapping challenged to show that Google actually intercepted any of their data when the Street View car drove past their homes.  If the plaintiffs fail, their whole case (and their lawyers’ payday) are at risk, since non-victims are not proper class representatives.

Finally, a brief cybersecurity obituary:   Apple’s warrant canary is pining for the fjords.

The Cyberlaw Podcast is now open to feedback.  Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com.  If you’d like to leave a message by phone, contact us at +1 202 862 5785.