Episodes

  • This episode features an interview with Ronald Deibert, Professor of Political Science, and Director of the Citizen Lab at the Munk School of Global Affairs & Public Policy, University of Toronto. We talk about his new book, “Reset: Reclaiming the Internet for Civil Society.” We also talk about the unique Canadian talent for debate that is both bare-fisted and unusually polite. Ron gets to use both talents in our discussion of what’s wrong with the technology ecosystem and whether it can be improved by imposing “restraint” on governments and the private sector.

    In the news roundup, I urge Twitter to bring back the Fail Whale to commemorate its whale of a fail in trying to suppress a New York Post story that is bad news for Joe Biden. It’s a disaster on all fronts, with Twitter unable to offer a satisfactory explanation for its suppression of the news report, or to hold to any particular enforcement policy for more than a day, and ended with an embarrassing insistence that the Post can’t have its account back until it deletes tweets that Twitter would probably allow the Post to post today.

    And not surprisingly, the episode is encouraging everyone to think that they can do this better than Twitter. The FCC is going to start work on an effort to add an administrative gloss to section 230. Mark MacCarthy thinks the Commission lacks authority to interpret the provision; I disagree. We do agree that Justice Thomas’s thoughts on section 230 are surprisingly detailed—and make Supreme Court review of the provision a lot more likely.

    Megan Stifel tells us that the ransomware business is getting even more specialized. Together we wonder if that specialization opens the door to new, even more creative ways to take down organized cybercrime.

    David Kris notes the pearl-clutching over search warrants that identify a pattern of conduct rather than an individual. He almost agrees with me that this is just what probable cause looks like in the twenty-first century.

    This Week in Europe’s Tough Privacy Talk and Slow Privacy Walk: David teams with Charles Helleputte to make sense of two data protection rulings in Europe that bring a lot more thunder than lightning to the debate: First, an attack on the privacy standards, such as they are, for online advertiser Real Time Bidding. Second, the proclamations of France’s top court and its DPA about sending data to US cloud providers.

    Megan notes two stories that deepen trends we knew were coming: hackers chaining VPN and ZeroLogon bugs to attack US government networks, maybe including election agencies and Iranian state hacker group resorting to ransomware attacks.

    We cover a few updates of past weeks’ stories: The fallout continues from OFAC’s ransomware advisory. (Rumors that the agency will be renamed WTF OFAC are unconfirmed). And Tik/Chat seems to be settling in for a longer court battlebefore the government’s arguments start to take hold. (As a bonus, our Cyberlaw grammarian makes a surprise appearance to announce the rule of English usage that prevents TikTok from ever being TokTik).

    In quick hits, we boldly predict that the government will launch an antitrust suit against Google, some day. We speculate on why Tesla’s autopilot AI might be fooled by projected images. And note New York’s claim that Twitter is systemically important to the nation’s financial system. Which, I must admit, is a about the most 2020 thing I’ve heard in a while.

    And more!

    Oh, and we have new theme music, courtesy of Ken Weissman of Weissman Sound Design. Hope you like it!

    Download the 334th 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.

  • In this week’s episode I interview David Ignatius about the technology in his latest spy novel, The Paladin. Actually, while we do cover such tech issues as deepfakes, hacking back, Wikileaks and internet journalism, the interview ranges more widely, from the steel industry of the 1970s, the roots of Donald Trump’s political worldview and the surprisingly important role played in the Trump-Obama-Russia investigation by one of David Ignatius’s own opinion pieces.

    Oh, and we have new theme music, courtesy of Ken Weissman of Weissman Sound Design. Hope you like it!

    Download the 333rd 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.

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  • It’s a law-heavy tech news week, so this episode is all news. If you come for the interviews, though, do not fear. We’ll be releasing episode 333 tomorrow, and it’s all interview, as I talk with David Ignatius about the tech issues in his latest spy novel, The Paladin.

    To kick things off, Matthew Heiman returns to the podcast to analyze a new decision of the Court of Justice of the EU. The CJEU claims in the headline to put limits on government mass collection of mobile and internet data, but both Matthew and I think the footnotes take away much of the doctrine the headlines proclaim – and maybe in a way that will add another arrow to the US quiver as it tries to work around the CJEU’s foolhardy decision in Schrems II.

    Sultan Meghji tells us that Trickbot has attracted the attention of both Cyber Command and Microsoft’s lawyers. Unfortunately, even that combination isn’t proving fatal, and I wonder whether Microsoft’s creative lawyering has gone a step too far.

    The Democratic-controlled House Judiciary Committee has released a blockbuster tech antitrust report. It’s hardly news that Democrats and Republicans on this most partisan of committees disagree about this issue, but Matthew and I are struck by how modest the disagreements are. In contrast, despite our conservative leanings, Matthew and I manage to disagree pretty profoundly on how antitrust principles should apply to Big Tech.

    Sultan, meanwhile, draws the short straw and has to explain the mother of all metaphor bombs that exploded in the Supreme Court when the court took oral argument in Google v. Oracle. It was a discouraging argument for those of us who admire the Justices, whose skills at finding apt metaphors completely failed them. I offer my past experience as a Supreme Court advocate to critique the argument and lay odds on the outcome. (Short version: Google has a nearly 50-50 chance of winning, and the Court has about the same chance of producing a respectable opinion.

    Brian Egan joins us to talk about the Justice Department’s sober report on how law enforcement can combat terrorist and criminal use of cryptocurrency.

    I claim to have caught Twitter and Facebook in a clear example of improper suppression of conservative (or at least Trumpist) speech, as they label as misleading a Trump tweet that turns out to be, well, true.

    Brian and I dig into the latest litigation over banning TikChat from US markets. Short version: the Justice Department has filed a strong brief seeking to overturn WeChat’s first amendment protection from the ban. If you’re looking for raw disagreement, listen for Brian coming out of his chair when I start comparing Silicon Valley and Chinese Communist Party net censorship regimes.

    Matthew explains why Sweden and Switzerland are fighting over a crypto company widely reported to have been compromised by US and German intelligence fifty years ago.

    And for our sensitive male listeners, this may be the point where you turn the podcast off, as I explain the dire consequences of bad IOT security and male chastity devices. Though, come to think of it, an angle grinder would make a pretty effective chastity device by itself.

    And more!

    Oh, and we have new theme music, courtesy of Ken Weissman of Weissman Sound Design. Hope you like it!

    Download the 332nd 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.

  • In this episode, Jamil Jaffer, Bruce Schneier, and I mull over the Treasury announcement that really raises the stakes even higher for ransomware victim. The message from Treasury seems to be that if the ransomware gang is the subject of OFAC sanctions, as many are, the victim needs to call Treasury and ask for a license to pay – a request that starts with a “presumption of denial.”

    Someone has been launching a series of coordinated attacks designed to disrupt Trickbot Bruce explains.

    CFIUS is baring its teeth on more than one front. First comes news that a newly resourced CFIUS staff has begun retroactively scrutinizing past Chinese tech investments. This is the first widespread reconsideration of investments that escaped notice when they were first made, and it could turn ugly. Next comes evidence that the TikTok talks with CFIUS could be getting ugly themselves, as Nate Jones tells us that Treasury Secretary Mnuchin has laid down the elements the US must have if TikTok is to escape a shutdown. None of us think this ends well for TikTok, as China and the US try to prove how tough they are by asking for mutually exclusive structures.

    The US government is giving US companies some free advice about how to keep sending their data to the U.S. despite the European Court of Justice decision in Schrems II: First-time participant Charles Helleputte offers a European counterpoint to my perspective, but we both agree that there’s a lot of value in the U.S. white paper. If nothing else, it offers a defensible basis for most companies to conclude that they can use the standard contractual clauses to send data to the US notwithstanding the court’s egregiously anti-American opinion. The court may not agree with the white paper, but the reasoning could buy everyone another three years and might be the basis of yet another U.S.-EU agreement.

    The UK seems to be preparing to take Bruce’s advice on regulating IOT security plan, but he thinks that banning easy default passwords is just table stakes.

    Bruce and I once again review the bidding on voting by phone, and once again we agree: No. Just No.

    Nate questions the press stories (and FBI director testimony) claiming that the FBI is pivoting to a new strategy for punishing hackers by sending Cyber Command after them. He thinks it’s less a pivot and more good interagency citizenship, which I suspect is still a change of pace for the Bureau.

    Bruce and I explore the possibility of attributing exploits to individuals based on their coding style. You might say that their quirks leave fingerprints for the authorities, except that at least one hapless hacker has one-upped them by leaving his actual fingerprints behind in an effort to get himself approved in a biometric authentication system.

    And in updates, we note that Microsoft has a new and unsurprising annual report on cyberattacks it has seen; the Senate will be subpoenaing the CEOs of Big Social to talk section 230 in an upcoming hearing; and the House intel committee has a bunch of suggestions for improving the performance of the intelligence community against evolving threats from Beijing.

    And more!

    Oh, and we have new theme music, courtesy of Ken Weissman of Weissman Sound Design. Hope you like it!

    Download the 331st 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.

  • Our news roundup is dominated by the seemingly endless ways that the U.S. and China can find to quarrel over tech policy. The Commerce Department’s plan to use an executive order to cut TikTok and WeChat out of the U.S. market have now been enjoined. But the $50 Nick Weaver bet me that TikTok could tie its forced sale up until January is still at risk, because the administration has a double-barreled threat to use against that company—not just the executive order but also CFIUS—and the injunction so far only applies to the first.

    I predict that President Xi is likely to veto any deal that appeals to President Trump, just to show the power of his regime to interfere with US plans. That could spell the end of TikTok, at least in the US. Meanwhile, Dave Aitel points out, a similar but even more costly fate could await much of the electronic gaming industry, where WeChat parent TenCent is a dominant player.

    And just to show that the U.S. is willing to do to U.S. tech companies what it’s doing to Chinese tech companies, leaks point to the imminent filing of at least one and perhaps two antitrust lawsuits against Google. Maury Shenk leads us through the law and policy options.

    The panelists dismiss as PR hype the claim that it was a threat of “material support” liability that caused Zoom to drop support for a PFLP hijacker’s speech to American university students. Instead, it looks like garden variety content moderation aimed this time at a favorite of the far left.

    Dave explains the good and the bad of the CISA order requiring agencies to quickly patch the critical Netlogon bug.

    Maury and I debate whether Vladimir Putin is being serious or mocking when he proposes an election hacking ceasefire and a “reset” in the cyber relationship. We conclude that there’s some serious mocking in the proposal.

    Dave and I also marvel at how Elon Musk, for all his iconoclasm, sure has managed to cozy up to both President Xi and President Trump, make a lot of money in both countries, and take surprisingly little flak for doing so. The story that spurs this meditation is the news that Tesla is so dependent on Chinese chips for its autonomous driving engine that it’s suing the US to end the tariffs on its supply chain.

    In quick hits and updates, we note a potentially big story: The Trump administration has slapped new restrictions on exports to Semiconductor Manufacturing International Corporation, China’s most advanced maker of computer chips.

    The press that lovingly detailed the allegations in the Steele dossier about President Trump’s ties to Moscow hasn’t been quite so loving in their coverage of the dossier’s astounding fall from grace. The coup de grace came last week when it was revealed that the main source for the juiciest bits was flagged by the FBI as a likely Russian foreign agent; he escaped a FISA order only because he left the country for a while in 2010.

    The FISA court has issued an opinion on what constitutes a “facility” that can be tapped with a FISA order. It rejected the advice of Cyberlaw Podcast regular David Kris in an opinion that includes all the court’s legal reasoning but remains impenetrable because the facts are all classified. Maury and I come up with a plausible explanation of what was at stake.

    The Trump administration has proposed Section 230 reform legislation similar to the white paper we covered a couple of months ago. The proposal so completely occupies the reasonable middle of the content moderation debate that a Biden administration may not be able to come up with its own reforms without sounding fatally similar to President Trump.

    And in yet more China news, Maury and Dave explore the meaning of Nvidia’s bid for ARM and Maury expresses no surprise at all that WeWork is selling off a big chunk of its Chinese operations

    And more!

    Oh, and we have new theme music, courtesy of Ken Weissman of Weissman Sound Design. Hope you like it!

    Download the 330th 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.

  • John Yoo, Mark MacCarthy, and I kick off episode 329 of the Cyberlaw Podcast diving deep into what I call the cyberspace equivalent of a dumpster fire. There is probably a pretty good national security case for banning TikTok. In fact, China did a lot better than the Trump administration when it declared, “You know that algorithm that tells all your kids what to watch all day? That’s actually a secret national security asset of the People’s Republic.” But the administration’s process for addressing the national security issue was unable to keep up with President Trump’s eagerness to announce some kind of deal. The haphazard and easily stereotyped process probably also contributed to the casual decision of a magistrate in San Francisco to brush aside US national security interests in the WeChat case, postponing the order on dubious first amendment grounds that John Yoo rightly takes to task.

    Megan Stifel tells us that the bill for decoupling from China is going to be high – up to $50 billion if you listen to the Semiconductor Industry Association.

    Speaking of big industry embracing big government, Pete Jeydel explains IBM’s slightly jarring suggestion that the government should slap export controls on a kind of face recognition technology that Big Blue doesn’t sell any more. Actually, when you put it like that, it kind of explains itself.

    Megan tells us that the House has passed a bill on the security of IOT devices. The bill, which has also moved pretty far in the Senate, is pretty modest, setting only standards for what the federal government will buy, but Megan has hopes that it will prove to be the start of a broader movement to address IOT security.

    I reprise three of the latest demonstrations of just how much Silicon Valley hates conservatives and how far it will go to suppress their speech. My favorite is Facebook deciding that a political ad that criticizes transwomen competing in women’s sports must be taken down because it lacks context. Unlike every other political ad since the beginning of time. Although Twitter’s double standard for a “manipulated media” label is pretty rich too: Turns out that splicing Trump’s remarks to make him say what the Biden camp is sure he meant is fair comment, but splicing a Biden interview so he says what the Trump camp is sure he meant is Evil Incarnate.

    Finally, Megan rounds out the week with a host of hacker news. The North Koreans are in bed with Russian cybercrime gangs. (I can’t help wondering who wakes up with fleas.) The Iranians are stealing 2FA codes and some of them were indicted, though not apparently for the 2FA exploit. And a long-running Chinese cybergang is indicted too. Not that that will actually stop them, but it could be hard on their Malaysian accomplices, who are in jail, contemplating the value of government top cover.

    Our interview this week is with Michael Brown, a remarkably influential defense technologist. He’s been CEO of Symantec, cowrote the report that led to passage of FIRRMA and the transformation of CFIUS, and now runs the Defense Innovation Unit in Silicon Valley. He explains what DIU does and some of the technological successes it has already made possible.

    And more!

    Oh, and we have new theme music, courtesy of Ken Weissman of Weissman Sound Design. Hope you like it!

    Download the 329th 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.

  • In our 328th episode of the Cyberlaw Podcast, Stewart is joined by Bruce Schneier (@schneierblog), Sultan Meghji @sultanmeghji), and Nate Jones (@n8jones81). The Belfer Center has produced a distinctly idiosyncratic report ranking the world’s cyber powers – a kind of Jane’s Fighting Nerds report. Bruce Schneier and I puzzle over its oddities, but at least the authors provided the underlying assessments to led them to rank the Netherlands No. 5, and Israel nowhere in the top ten. The US is number one, but that’s partly due to the Center’s insistence that we’re a norms superpower. In my book, that would require a 20% discount off our offensive capabilities ranking. Don’t agree? Download the report and pick your own fight!

    Our interview today is with Cory Doctorow, diving deep on his pamphlet/book, “How to Destroy Surveillance Capitalism.” It’s a robust and entertaining three-cornered fight – me, Cory, and the absent Shoshana Zuboff, whose 700-page tome launched the surveillance capitalism meme. You’ll enjoy hearing me explain to Cory, a Red Diaper Baby born to Trotskyists, that his solution to tech’s overreach is surprisingly similar to Attorney General Bill Barr’s.

    Elsewhere in the news roundup, Nate Jones and I unpack the Pandora’s Box of pain unleashed by the European Court of Justice in Schrems II.

    Facebook is fighting a multilevel rearguard action – in the courts, in two capitals, and in its terms of service -- to try to salvage its current business model.

    I cover the latest Tok in the TikTok saga. Oracle has won … something or other. Sultan Meghji and I puzzle over how the TikTok algorithm can stay in China while the dataset it’s training on remains in the United States.

    The Justice Department's antitrust lawsuit against Google is getting nearer and nearer, judging from the thrashing in the underbrush. But we still don’t have a good idea what part of Google’s business will be targeted. Sultan explains the state of play.

    In a news flash that I liken in shock value to the report that the weather in San Diego will be sunny and fair, Microsoft has confirmed that the Chinese, Iranians, and Russians have launched cyber-attacks on Biden and Trump campaigns. For reasons unknown, the press can’t get enough of this thin gruel.

    Bruce and Sultan chart the reasons and tactics behind the rise of ransomware and the importance of being a reliable criminal if you want to make money in extortion.

    Nate unpacks China’s global data security initiative so you don’t have to waste your time. The tl;dr is that other countries shouldn’t do any of the things China is doing or aspiring to do.

    Speaking of things you don’t have to read because we took the hit, Bruce tells us what’s in the new White House cyber-security policy for space systems. Really, it’s all “shoulds” and puts nobody in charge of enforcement. It would be kind to call it the beta version of a space cybersecurity policy.

    Sultan argues that there may after all be a limit to the EU’s ability to get every company on the internet to enforce its speech codes, and the domain name registries hope they’re on the other side of that line.

    You probably saw the “op-ed” that AI “wrote,” explaining why humans need not fear it. Bruce, Sultan, and I have plenty of fun mocking Open AI’s penchant for Open Hype. But Bruce reminds us that sooner or later the hype will be real, and more than half of Twitter will be machines talking to other machines. Judging from my Twitter feed, that will be an improvement.

    Finally, This Week in Sore Losing: In honor of Jeff Bezos’s AWS and its brief complaining that it should have beat Microsoft to the lucrative JEDI contract, I update an old lawyer’s motto: If you’ve got the law on your side, pound the law. If you’ve got the facts, pound the facts. And if you’ve got neither, pound the Orange Man.

    And more!

    Download the 328th 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.

  • In our 327th episode of the Cyberlaw Podcast, Stewart is joined by Nick Weaver (@ncweaver), David Kris (@DavidKris), and Dave Aitel (@daveaitel). We are back from hiatus, with a one-hour news roundup to cover the big stories of the last month. Pride of place goes to the WeChat/Tiktok mess, which just gets messier as the deadline for action draws near. TikTok is getting all the attention but WeChat is by far the thorniest policy and technical problem. I predict delays as Commerce wrestles with them. Nick Weaver predicts that TikTok’s lawsuit will push resolution of its situation into January. I’ve got fifty bucks that says it won’t. Lawfare wins either way.

    Dave Aitel digs into the attempted Tesla hack. Second best question in the segment: Who’s the insider that enabled an attack on his employer and is still working there three years later? Best question: How many CSO’s can say with confidence that none of their employees would take $1 million to plug a USB stick into the company network?

    This Month in Overhyped Judicial Decisions about FISA: David Kris lays out the seven-years-late Ninth Circuit decision that has been billed as striking at the FISA warrantless surveillance law. Talk about overtaken by events. The opinion grumbles about the Fourth Amendment but doesn’t actually rule (and its analysis is so partial that it isn’t even persuasive dicta). It boldly finds that the collection violated a statute that has been repealed anyway. And then it says that doesn’t matter because suppression of the evidence isn’t a remedy and the violation didn’t taint the trial. The only really good news for the civil liberties community is that Justice can’t appeal to the Supreme Court because, well, it won.

    David also takes on the other overhyped FISA decision, a lengthy FISA court review of agencies’ minimization practices with respect to Americans’ data collected under section 702. The court approved practically everything but was predictably and not improperly upset at the FBI’s inability to design social and IT systems that prevent dumb violations of the rules.

    Speaking of FISA, important national security provisions remain unsettled, in large part because of Trump’s misguided opposition. Who, David asks, could possibly persuade GOP members that there’s a FISA reform that responds to their sense of grievance over the Russian collusion investigation? I volunteer, with lengthy testimony to the PCLOB and a shorter piece in Lawfare.

    Dave Aitel asks why we’re surprised that Iranian hackers are monetizing access to networks that don’t offer national security value to their government. Or that hackers are following their targets into specialized software markets. If you know your target is a law firm, he suggests, you’d be better off looking for flaws in Relativity than in Windows…. Excuse me, I just felt someone walk over my grave.

    Nick and Dave are both critical of the Justice Department’s indictment of Joe Sullivan for obstruction of justice and misprision of felony. That is beginning to look like a case Sullivan can win, and he just might take it to trial.

    Nick thinks the Justice Department is playing a long game in pretending it can seize 280 cryptocurrency accounts used by hackers. It can’t get the funds, but it sure can make it hard for the hackers to get them.

    U.S. Agencies Must Adopt Vulnerability-Disclosure Policies by March 2021.

    And more!

    Download the 327th 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.

  • In our 326th episode of the Cyberlaw Podcast, Stewart Baker interviews Lauren Willard, who serves as Counsel to the Assistant Attorney General. Stewart is also joined Nick Weaver (@ncweaver), David Kris (@DavidKris), and Paul Rosenzweig (@RosenzweigP).

    Our interview this week focuses on section 230 of the Communications Decency Act and features Lauren Willard, counsel to the Attorney General and a moving force behind the well-received Justice Department report on section 230 reform. Among the surprises: Just how strong the case is for FCC rule-making jurisdiction over section 230.

    In the news, David Kris and Paul Rosenzweig talk through the fallout from Schrems II, the Court of Justice decision that may yet cut off all data flows across the Atlantic.

    Paul and I speculate on the new election interference threat being raised by House Democrats. We also pause to praise the Masterpiece Theatre of intelligence reports on Russian cyber-attacks.

    Nick Weaver draws our attention to a remarkable lawsuit against Apple. Actually, it’s not the lawsuit, it’s the conduct by Apple that is remarkable, and not in a good way. Apple gift cards are being used to cash out scams that defraud consumers in the US, and Apple’s position is that, gee, it sucks to be a scam victim but that’s not Apple’s problem, even though Apple is in the position to stop these scams and actually keeps 30% of the proceeds. I point out the Western Union–on better facts than that–ended up paying hundreds of millions of dollars in an FTC enforcement action–and still facing harsh criminal sanctions.

    Paul and David talk us through the 2021 National Defense Authorization Act, which is shaping up to make a lot of cyber-security law, particularly law recommended by the Cyber Solarium Commission. On one of its recommendations – legislatively creating a White House cyber coordinator – we all end up lukewarm at best.

    David analyzes the latest criminal indictment of Chinese hackers, and I try to popularize the concept of crony cyberespionage.

    Paul does a post-mortem on the Twitter hack. And speaking only for myself, I can’t wait for Twitter to start charging for subscriptions to the service, for reasons you can probably guess.

    David digs into the story that gives this episode its title – an academic study claiming that face recognition systems can be subverted by poisoning the training data with undetectable bits of cloaking data that wreck the AI model behind the system. How long, I wonder, before Facebook and Instagram start a “poisoned for your protection” service on their platforms?

    In quick takes, I ask Nick to comment on the claim that US researchers will soon be building an “unhackable” quantum Internet. Remarkably his response is both pithy and printable.

    And more!

  • The big news of the week was the breathtakingly arrogant decision of the European Court of Justice, announcing that it would set the rules for how governments could use personal data in fighting crime and terrorism.

    Even more gobsmacking, the court decided to impose those rules on every government on the planet – except the members of the European Union, which are beyond its reach. Oh, and along the way the court blew up the Privacy Shield, exposing every transatlantic business to massive liability, and put the EU on a collision course with China over China’s most sensitive domestic security operations. This won’t end well. Paul Hughes helps me make sense of the decision.

    In the interview, I talk to Darrell West, co-author of Turning Point—Policymaking in the Era of Artificial Intelligence. We mostly agree on where AI is already making a difference, where it’s still hype, and how it will transform war. Where we disagree is over the policy prescriptions for avoiding the worst outcomes. I disagree with the relentless focus of the book (and every other book in recent years) on the questionable claim of AI bias, and Darrell and I have a spirited disagreement over my claim that his prescription will hide numerical racial and gender quotas in every aspect of life that AI touches.

    Iranian cyberspies make pretty good training videos, Sultan Meghji tells us, but they’re not taking any bows after leaving the videos exposed online.

    If you thought Twitter’s content resembled middle school, wait until you see their security measures in action. Nate Jones has the details, but my takeaway is that middle school science projects are usually handled a lot more responsibly than Twitter’s “god mode” dashboard.

    BIPA, the Illinois biometric privacy act, has inspired lawsuits against users of a database assembled to reduce AI bias. Mark MacCarthy explains that the law prohibits the use of biometrics (like pictures of your face) without consent. I observe that this makes BIPA the COVID-19 of privacy law. Anyone who touches this database will be infected with liability, at least if the plaintiff’s surprisingly plausible theory holds up.

    Sultan reminds us that the PRC has now been caught twice requiring companies in China to use tax software with built-in malware. You know what they say: “Once is happenstance. Twice is coincidence. Three times is enemy action.” I don’t think we’ll need to wait long to see number three.

    Nate gives us a former government lawyer’s take on the CIA’s new authority to conduct cyber covert action. (Yahoo, Lawfare) Ordinarily he’d be skeptical of keeping those decisions away from the White House, but in this case, he’ll make an exception. My take: If unshackling the CIA has produced the APT34 and FSB hacks and data dumps, what’s not to like?

    In short hits, I mock the Justice Department spokesperson who claimed that Ghislaine Maxwell was engaged in “a misguided effort to evade detection” when she wrapped her cellphone in tin foil. And Mark and I cross swords over Reddit’s capture by the Intolerant Left. You make the call: When Reddit declares that exposing fake hate crimes as hoaxes is a form of hate speech, is that anecdotal evidence of left-wing bias or stone-cold proof of epistemic closure?

    Download the 325th 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.

  • Our interview is with Bruce Schneier, who has co-authored a paper about how to push security back up the Internet-of-things supply chain: The reverse cascade: Enforcing security on the global IoT supply chain. His solution is hard on IOT affordability and hard on big retailers and other middlemen, who will face new liabilities, but we conclude that it’s doable. In fact, the real question is who’ll get there first, a combination of DHS’s CISA and the FTC or the California Secretary of State.

    In the News Roundup Megan Stifel (@MeganStifel), Nate Jones (@n8jones81), and David Kris (@DavidKris) and I discuss how it must feel to TikTok as though the shot clock is winding down. Administration initiatives that could hurt or kill its US business are proliferating. Nate Jones, Megan Stifel, and I explore the government’s options. The most surprising, and devastating, of them is a simple ban on TikTok as a threat to national security or the security of Americans. That’s the standard under Executive Order 13873, a brand-new (the regs aren’t yet final) implementation of the well-tested tools under IEEPA. A straightforward application of IEEPA remedies would cut TikTok off from the US market, I argue.

    Meanwhile, another little-advertised but equally sweeping rule for government contractors is on its way to implementation. It will deny federal contracts, not just to certain Chinese products but to contractors who themselves use those products.

    Not to be outdone by the contracting officers, the Federal Trade Commission and Justice Department are attacking TikTok from a different direction — investigating claims that the company failed to live up to last year’s consent decree on the privacy of children using the app.

    And, on top of everything, private sector CISOs are drawing a bead on the app, as Wells Fargo and (briefly) Amazon tell their employees to take the app off their work phones.

    It’s no surprise in the face of these developments that TikTok is working overtime to decouple itself in the public’s mind from China, including going so far as to join the rest of Silicon Valley in signaling discomfort with Hong Kong’s new security rules (and ruler). Megan and I question whether this strategy will succeed.

    If Chief Justice Roberts were running for office, he couldn’t have produced a better result than the Court’s latest tech decision – upholding most of a law that makes robocalls illegal while striking down the one part of the law that authorizes robocalls. David Kris explains.

    Nate unpacks a new Florida DBA privacy law prohibiting life, disability and long-term care insurance companies from using genetic tests for coverage purposes. I express skepticism.

    Nate also explains the mysteriously quiet launch of the UK-US Bilateral Data Access Agreement. Four years in the making, and neither side wanted to announce that it was in effect – what’s with that, I wonder?

    FBI Director Wray gives a compelling speech on the counterintelligence and economic espionage threat from China.

    He says the bureau opens a new such case every ten hours. And right on schedule come charges against a professor charged with taking $4M in US grant money to conduct research — for China.

    David and I puzzle over the surprisingly lenient sentence handed to a former Yahoo engineer for hacking the personal accounts of more than 6,000 Yahoo Mail users to search and collect sexually explicit images and videos.

  • In the News Roundup, Dave Aitel (@daveaitel), Mark MacCarthy (@Mark_MacCarthy), and Nick Weaver (@ncweaver) and I discuss how French and Dutch investigators pulled off the coup of the year this April, when they totally pwned a shady “secure phone” system used by massive numbers of European criminals. Nick Weaver explains that hacking the phones of Entrochat users gave them access to large troves of remarkably candid criminal text conversations. And, I argue, it shows the flaw in the argument of encryption defenders. They are right that restricting Silicon Valley encryption will send criminals to less savory companies, but those companies are inherently more prone to compromise, as happened here.

    The EARN IT Act went from Washington-controversial to Washington consensus in the usual way. It was amended into mush. Indeed, there’s an argument that, by guaranteeing nothing bad will happen to social platforms who adopt end-to-end encryption, the Leahy amendment has actually made e2e crypto more attractive than it is today. That’s my view, but Mark MacCarthy still thinks the twitching corpse of EARN IT might cause harm by allowing states to adopt stricter rules for liability in the context of child sex abuse material. He also thinks that it won’t pass. I have ten bucks that says it will, and by the end of the year.

    Dave Aitel, new to the news roundup, discusses the bad week TikTok had in its second biggest market. India has banned the app. And judging from some of the teardowns of the code, its days may be numbered elsewhere as well. Dave points to reports that Angry Birds was used to collect user information as well when it was at the height of its popularity. We wax philosophic about why advertising and not national security agencies are breaking new ground in building our Brave New World.

    Mark once worked for a credit card association, so he’s the perfect person to comment on claims that being labeled a “hate speech” platform won’t just get you boycotted in Silicon Valley but by the credit card associations as well. And once we’re in this vein, we mine it, covering Silicon Valley’s concerted campaign to make sure Donald Trump can’t repeat 2016 in 2020. He’s been deplatformed at Twitch this week for something he said in 2016. And Reddit dumped his enormous subreddit for failure to observe its censorship rules – which I point out are designed to censor only the majority. I argue it’s time to go after the speech police.

    Nick takes us to a remarkable Washington story. He thinks it’s about a questionable Trump administration effort to redirect $10 million in “freedom tool” funding from cryptolibertarians to Falun Gong coders. I point out that US government funds going to the cryptolibertarians were paying the salary of the notorious Jake Applebaum and buying tools like TAILS that have protected appalling sextortionist criminals. Really, the money would be better spent if we burned it on cold days.

    Returning to This Week in Hacked Phones, Nick explains the latest man in the middle attack that requires the phone user to do nothing but visit a website. Any website. Dave sets out the strikingly sophisticated and massive international surveillance system now aimed by China at Uighers all around the world. And Nick warns of two bugs that, if you haven’t spent the weekend fixing, may already be exploited on your network.

    Download the 323rd 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.

  • For the first time in twenty years, the Justice Department is finally free to campaign for the encryption access bill it has always wanted. Sens. Lindsey Graham (R-S.C.), Tom Cotton (R-Ark.), and Marsha Blackburn (R-Tenn.) introduced the Lawful Access To Encrypted Data Act. (Ars Technica, Press Release) As Nick Weaver points out in the news roundup, this bill is not a compromise. It’s exactly what the Justice Department wants – a mandate that every significant service provider or electronic device maker build in the ability to decrypt any data it has encrypted when served with a lawful warrant.

    In our interview, Under Secretary Chris Krebs, head of the Cybersecurity and Infrastructure Security Agency, drops in for a chat on election security, cyber espionage aimed at coronavirus researchers, why CISA needs new administrative subpoena authority, the value of secure DNS, and how cybersecurity has changed in the three years since he took his job.

    Germany’s highest court has ruled that the German competition authority can force Facebook to obtain user consent for internal data sharing, to prevent abuse of a dominant position in the social networking market. Maury Shenk and I are dubious about the use of competition law for privacy enforcement. Those doubts could also send the ruling to a still higher forum – the European Court of Justice.

    You might think that NotPetya is three years in the rear-view mirror, but the idea of spreading malware via tax software, pioneered by the GRU with NotPetya, seems to have inspired a copycat in China. Maury reports that a Chinese bank is requiring foreign firms to install a tax app that, it turns out, has a covert backdoor. (Ars Technica, Report, NBC)

    The Assange prosecution is looking less like a first amendment case and more like a garden variety hacking conspiracy thanks to the government’s amended indictment. (DOJ, Washington Post) And, as usual, the more information we have about Assange, the worse he looks.

    Jim Carafano, new to the podcast, argues that face recognition is coming no matter how hard the press and NGOs work to demonize it. And working hard they are. The ACLU has filed a complaint against the Detroit police, faulting them for arresting the wrong man based on a faulty match provided by facial recognition software. (Ars Technica, Complaint)

    The Facebook advertiser moral panic is gaining adherents, including Unilever and Verizon, but Nick and I wonder if the reason is politics or a collapse in ad budgets. Whatever the cause, it’s apparently led Mark Zuckerberg to promise more enforcement of Facebook’s policies.

    In short hits, the U.S. Department of Homeland Security sent a letter to chief executives of five large tech companies asking them to ensure social media platforms are not used to incite violence. Twitter has permanently suspended the account of leak publisher DDoSecrets. (Ars Technica, Cyber Scoop). Rep. Devin Nunes (R-Calif.) was told what he must have known when he filed his case: he cannot sue Twitter for defamation over tweets posted by a parody account posing as his cow. (Ars Technica, Ruling) Nick explains why it’s good news all around as Comcast partners with Mozilla to deploy encrypted DNS lookups on the Firefox browser. And Burkov gets a nine-year sentence for his hacking.

    Download the 322nd 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.

  • This is the week when the movement to reform Section 230 of the Communications Decency Act got serious. The Justice Department released a substantive report suggesting multiple reforms. I was positive about many of them (my views here). Meanwhile, Sen. Josh Hawley (R-MO) has proposed a somewhat similar set of changes in his bill, introduced this week. Nate Jones and I dig into the provisions, and both of us expect interest from Democrats as well as Republicans.

    The National Security Agency has launched a pilot program to provide secure domain name system (DNS) resolver services for US defense contractors. If that’s such a good idea, I ask, why doesn’t everybody do it, and Nick Weaver tells us they can. Phil Reitinger’s Global Cyberalliance offers Quad9 for this purpose.

    Gus Hurwitz brings us up to date on a host of European cyberlaw developments, from terror takedowns (Reuters, Tech Crunch) to competition law to the rise of a disturbingly unaccountable and self-confident judiciary. Microsoft’s Brad Smith, meanwhile, wins the prize for best marriage of business self-interest and Zeitgeist in the twenty-first century.

    Hackers used LinkedIn’s private messaging feature to send documents containing malicious code which defense contractor employees were tricked into opening. Nick points out just what a boon LinkedIn is for cyberespionage (including his own), and I caution listeners not to display their tattoos on LinkedIn.

    Speaking of fools who kind of have it coming, Nick tells the story of the now former eBay executives who have been charged with sustained and imaginatively-over-the-top harassment of the owners of a newsletter that had not been deferential to eBay. (Wired, DOJ)

    It’s hard to like the defendants in that case, I argue, but the law they’ve been charged under is remarkably sweeping. Apparently it’s a felony to intentionally use the internet to cause substantial emotional distress. Who knew? Most of us who use Twitter thought that was its main purpose. I also discover that special protections under the law are extended not only to prevent internet threats and harassment of service animals but also horses of any kind. Other livestock are apparently left unprotected. PETA, call your office.

    Child abusers cheered when Zoom buckled to criticism of its limits on end-to-end encryption, but Nick insists that the new policy offers safeguards for policing misuse of the platform. (Ars Technica, Zoom)

    I take a minute to roast Republicans in Congress who have announced that no FISA reauthorization will be adopted until John Durham’s investigation of FISA abuses is done, which makes sense until you realize that the FISA provisions up for reauthorization have nothing to do with the abuses Durham is investigating. So we’re giving international terrorists a break from scrutiny simply because the President can’t keep the difference straight.

    Nate notes that a story previewed in April has now been confirmed: Team Telecom is recommending the blocking of a Hong Kong-US undersea cable over national security concerns.

    Gus reminds us that a bitter trade fight between the US and Europe over taxes on Silicon Valley services is coming. (Politico, Ars Technica)

    Nick and I mourn the complete meltdown of mobile phone contact tracing. I argue that from here on out, some portion of coronavirus deaths should be classified as mechanogenic (caused by engineering malpractice). Nick proposes instead a naming convention built around the Therac-25.

    And we close with a quick look at the latest data dump from Distributed Denial of Secrets. Nick thinks it’s strikingly contemporaneous but also surprisingly unscandalizing.

    Download the 321st 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.

  • Our interview this week is with Chris Bing, a cybersecurity reporter with Reuters, and John Scott-Railton, Senior Researcher at Citizen Lab and PhD student at UCLA. John coauthored Citizen Lab’s report last week on BellTroX and Indian hackers for hire, and Chris reported for Reuters on the same organization’s activities – and criminal exposure – in the United States. The most remarkable aspect of the story is how thoroughly normalized hacking legal and lobbying opponents seems to have become, at least in parts of the US legal and investigative ecosystem. I suggest that instead of a long extradition battle, the US give the head of BellTroX a ticket to the US and a guaranteed income for the next few years as a witness against his customers.

    In the news roundup, Nick Weaver tells the remarkable story of how Facebook funded an exploit aimed at taking down a particularly vile online abuser of young girls who was nearly invulnerable because he was using TAILS, the secure, thumb drive-based communication system (Vice, Gizmodo). This is a great story because it really doesn’t fit into any of the stilted narratives into which most internet security stories are usually jammed.

    Nick also notes Big Tech’s pledge to do more to stop child abuse online. I suggest that only Dr. Evil would be impressed by the amounts of money being invested in the campaign.

    Well, another week, another Zoom bomb. Now the company is taking heat because it terminated several Tiananmen Square commemorative Zoom sessions after China complained (NYT, Zoom). David Kris and I don’t think Zoom had much choice about cutting off the Chinese customers. Terminating the US account holder who organized a session, however, was a bad move – and one that’s since been corrected by the company.

    Nate Jones and I square off again for Round 545 on content moderation, spurred this time by reports that Sen. Josh Hawley is drafting legislation inspired by the Trump Administration’s Section 230 EO. Meanwhile several Republican senators are pushing the FCC to act on the order. Nate and I find rare bipartisan common ground on the idea that Congress should require social media companies to take down foreign government online messaging – and maybe work with the US government to stop it at the source.

    David reports on a fairly (and deservedly) obscure EU cloud independence project. It seems to have been embraced by Microsoft, which I accuse of going full AT&T – embracing government regulation as a competitive differentiator. As if to prove my point, Microsoft announces that it’s getting out of the business of doing facial recognition for the police – until it can persuade Congress to regulate its competitors.

    Why are spies targeting vaccine research? Nate highlights the excellent Risky Biz newsletter analysis of what drives COVID-19 cyberespionage.

    Nick flags the potential significance of ARM wrestling, as the UK chip designer ARM fights its JV partner for control of its Chinese joint venture. Nick also assigns a “moderate” threat label to the latest Universal Plug n Pwn exploit. It’s only moderate because there are so many pwned IOT devices already in a position to DDOS targets of opportunity.

    In quick hits, I note that Israel has halted its controversial use of intelligence capabilities to monitor the spread of the coronavirus, but the government reserves the right to revive monitoring if a second wave shows up (JPost, Yahoo). Poor Brewster Kahle is looking like an internet hippie who fell asleep at Woodstock and woke up at Altamont. The Internet Archive is ending its program of offering free, unrestricted copies of e-books, but the publishers who sued over that program may decide to keep suing until they’ve broken his entire “digital library” model, and maybe the Internet Archive as well (NYT, Ars Technica). That would be a shame. Finally, you can have a thousand talents, but honesty may not be one of them. Charles Lieber, the Harvard University professor arrested for lying about his lucrative China contracts, has now been indicted on false statement charges.

    Download the 320th 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.

  • Our interview with Ben Buchanan begins with his report on how artificial intelligence may influence national and cybersecurity. Ben’s quick takes: better for defense than offense, and probably even better for propaganda. The best part, in my view, is Ben’s explanation of how to poison the AI that’s trying to hack you—and the scary possibility that China is already poisoning Silicon Valley’s AI.

    By popular request, we’ve revisited a story we skipped last week to do a pretty deep dive on the decision (for now) that Capital One can’t claim attorney-client work product privilege in a Mandiant intrusion response report prepared after its breach. Steptoe litigator Charles Michael and I talk about how IR firms and CISOs should respond to the decision, assuming it stands up on appeal.

    Maury Shenk notes the latest of about a hundred warnings, this time from Christopher Krebs, the director of DHS’s cybersecurity agency and the head of Britain’s GCHQ, that China’s intelligence service—and every other intelligence service on the planet—seem to be targeting COVID-19 research.

    Maury takes us through the week in internet copyright fights. Ideological copyright enforcement meets the world’s dumbest takedown bots as Twitter removes a Trump campaign video tribute to George Floyd due to a copyright claim. The video is still available on Trump’s YouTube channel.

    We puzzle over Instagram’s failure to provide a license to users of its embedding API. The announcement could come as an unwelcome surprise to users who believed that embedding images, rather than hosting them directly, provides insulation against copyright claims.

    Finally, much as I love Brewster Kahle, I’m afraid that Kahle’s latest move marks his transition from internet hippie to “holy fool”—and maybe a broke one. His Internet Archive, the online library best known for maintaining the Internet Wayback Machine makes scanned copies of books available to the public on terms that resemble a library’s. The setup was arguably legal—and no one was suing—until Kahle decided to let people download more books than his company had paid for. Now he faces an ugly copyright lawsuit.

    Speaking of ugly lawsuits, Mark MacCarthy and Paul Rosenzweig comment on the Center for Democracy and Technology’s complaint that Trump violated tech companies’ right to free speech with his executive order on section 230. (Reuters, NYT) I question whether this lawsuit will get far.

    This Week in Working the Ref: Facebook and Mark Zuckerberg are facing criticism from users, competitors, civil rights organizations for failing to censor the people those groups hate. (Ars Technica, Politico). Meanwhile, Snap scores points by ending promotion of Trump’s account after concluding his tweets incited violence.

    Where is Nate Jones when you need him? He would love this story: A Twitter user sacrificed a Twitter account to show that Trump is treated differently than others by the platform. Of course, the panel notes, that’s pretty much what Twitter says it does.

    In quick hits, I serve notice that no one should be surprised if Justice brings an adtech antitrust suit against Google. The Israeli government announces an attack on its infrastructure so late that the press has already identified and attributed its retaliatory cyberattack on Iran’s ports. And somebody pretty good—probably not the Russians, I argue—is targeting industrial firms.

    Download the 319th 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.

  • This episode features an in-depth (and occasionally contentious) interview with Bart Gellman about his new book, Dark Mirror: Edward Snowden and the American Surveillance State, which can be found on his website and on Amazon. I’m tagged in the book as having been sharply critical of Gellman’s Snowden stories, and I live up to the billing in this interview. He responds to my critique in good part. Gellman offers detailed insights into Edward Snowden’s motives and relationships to foreign governments, as well as how journalism – and journalistic lawyering – is done in the Big Leagues.

    Our news roundup focuses heavily on the Trump Administration’s executive order on section 230 of the Communications Decency Act (Wall Street Journal Washington Post). I end up debating all three of my co-panelists – Nate Jones, Nick Weaver, and Evelyn Douek, rejoining us on a particularly good day, given her expertise. We agree to disagree on whether Silicon Valley applies its rules in a fashion that discriminates against conservatives. More interesting is the rough consensus that Silicon Valley’s heavy influence over our speech is worth worrying about and that transparency is one of the better ways to discipline that influence. No one but me is willing to consider the possibility that the executive order represents a good step toward transparency.

    Nate and I find much room to agree, though, on the tragicomedy emerging from the reauthorization of three relatively straightforward FISA provisions. Stay tuned for a House-Senate conference, plus heavy lobbying of the President.

    Nick explains NSA’s outing of Russian military hackers targeting mail relay software (CyberScoop NSA).

    Nate and I cover the latest in US-China decoupling – the FCC and Justice Department enthusiasm for kicking Chinese telecom firms out of the country and, in a possible new front, heavy scrutiny being given to Chinese-built transformers.

    Evelyn tells us that, as a visa holder, she’s definitely hoping that the courts overturn US rules forcing visa applicants to disclose their social media handles. I predict that her hopes will be dashed.

    Finally, Nick explains who needs a “quantum holographic catalyzer” to protect against 5G telecom emissions. Quick answer: No one. It’s a fake cure for fake malady.

    Download the 318th 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.

  • Our interview is with Mara Hvistendahl, an investigative journalist at The Intercept and author of a new book, The Scientist and the Spy: A True Story of China, the FBI, and Industrial Espionage, as well as a deep WIRED article on the least known Chinese AI champion, iFlytek. Mara’s book raises questions about the expense and motivations of the FBI’s pursuit of commercial spying from China.

    In the News Roundup, Gus Hurwitz, Nick Weaver, and I wrestle with whether Apple’s lawsuit against Corellium is really aimed at the FBI. The answer looks to be affirmative since an Apple victory would make it harder for contractors to find hackable flaws in the iPhone.

    Germany’s top court ruled that German intelligence can no longer freely spy on foreigners – or share intelligence with other western countries. The court seems to be trying to leave the door open to something that looks like intelligence collection, but the hurdles are many. Which reminds me that I somehow missed the 100th anniversary of the Weimar Republic.

    There’s Trouble Right Here in Takedown City. Gus lays out all the screwy and maybe even dangerous takedown decisions that came to light last week. YouTube censored epidemiologist Knut Wittkowski for opposing lockdown. It suspended and then reinstated a popular Android podcast app for the crime of cataloging COVID-19 content. We learned that anyone can engage in a self-help right to be forgotten with a bit of backdating and a plagiarism claim. Classical musicians are taking it on the chin in their battle with aggressive copyright enforcement bots and a sluggish Silicon Valley response.

    In that climate, who can blame the Supreme Court for ducking cases asking for a ruling on the scope of Section 230? They’ve dodged one already, and we predict the same outcome in the next one.

    Finally, Gus unpacks the recent report on the DMCA from the Copyright Lobbying Office – er, the Copyright Office.

    With relief, we turn to Matthew Heiman for more cyber and less law. It sure looks like Israel launched a disruptive cyberattack on Iranian port facility. It was probably a response to Iranian cybe-rmeddling with Israeli water systems.

    Nick covers Bizarro-world cybersecurity: It turns out malware authors now can hire their own black-market security pentesters.

    I ask about open-source security and am met with derisive laughter, which certainly seems fair after flaws were found in dozens of applications.

    I also cover new developments in AI. And the news from AI speech imitation is that Presidents Trump and Obama have fake-endorsed Lyrebird.

    Gus reminds us that most of privacy law is about unintended consequences, like telling Grandma she’s violating GDPR by posting her grandchildren's photos without their parents' consent.

    Beerint at last makes its appearance, as it turns out that military and intelligence personnel can be tracked with a beer enthusiast app.

    Finally, in the wake of Joe Rogan’s deal with Spotify, I offer assurances that the Cyberlaw Podcast is not going to sell out for $100 million.

    Download the 317th 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.

  • Peter Singer continues his excursion into what he calls “useful fiction” – thrillers that explore real-world implications of emerging technologies – with Burn-In: A Novel of the Real Robotic Revolution, to be released May 26, 2020. This interview explores a thoroughly researched (and footnoted!) host of new technologies, many already in production or on the horizon, all packed inside a plot-driven novel. The book is a painless way to understand what these technologies make possible and their impact on actual human beings. And the interview ranges widely over the policy implications, plus a few plot spoilers.

    In the News Roundup, David Kris covers the latest Congressional FISA Follies, leading me into a rant on the utter irresponsibility of subjecting national security authorities to regular expiration – and regular ransom demands from the least responsible elements of Congress. Speaking of FISA, it turns out that the December Pensacola shootings were hatched by al-Qaeda’s Yemen franchise. Why are we only learning this in May? Because the evidence comes from an iPhone whose security Apple refused to find a way around. The FBI’s self-help solution worked in the end, but not until the trail had gone cold.

    Decoupling is in overdrive this week. Nick Weaver talks about the move by the Trump Administration to achieve semiconductor self-sufficiency – and the not-coincidental announcements that TSMC will build a chip factory in Arizona and that the Commerce Department has drafted a new export rule aimed at making it much harder for TSMC to build chips for Huawei. In response, China is preparing a list of unreliable US suppliers of technology. I wonder whether putting companies on the list for diversifying their supply chain out of China will have the long-term effect of making companies more reluctant to open new supply relationships with Chinese companies.

    David and I note that recent U.S. accusations of Chinese and Iranian cyber intrusions on COVID-19 research may be more than just the usual imprecations.

    And Nick explains why so many US professors are going to jail for undisclosed China ties. The key word is “undisclosed.”

    Mark MacCarthy previews France’s (and Germany’s and the EU’s and the UK’s) increasingly tough sanctions for US social media firms that fail to remove "hate speech" and other bad content within 24 hours (or sometimes one hour). More and more, it seems, Section 230 immunity is just a local U.S. ordinance.

    Mark and Nick review the latest trial balloon from Europe’s technocrats: How about a Chinese firewall for Europe? Some apparently respectable policy thinkers working for the European Parliament seem interested in such an idea.

    David and Nick find themselves agreeing with the latest release from DHS’s CISA pouring cold water on online voting.

    In quick hits, David notes the Trump administration’s now routine extension of the "telecom national security" Executive Order, Nick brings us This Week in NSO Bashing, I touch on a ransomware and doxing threat that has tripped up a celebrity law firm, and Nick and I muse on why cell phone contact tracing seems about to jump the shark.

    We close with a surprising catfishing story.

    Download the 316th 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.

  • J.P. Morgan once responded to President Teddy Roosevelt’s charge that he’d violated federal antitrust law by saying, “If we have done anything wrong, send your man to see my man, and we’ll fix it up.” That used to be the gold standard for monopolist arrogance in dealing with government, but Google and Apple have put J.P. Morgan in the shade with their latest instruction to the governments of the world: You can’t use our app to trace COVID-19 infections unless you promise not to use it for quarantine or law enforcement purposes. They are only able to do this because the two companies have more or less 99 percent of the phone OS market. That’s more control than Morgan had of U.S. railways, and their dominance apparently allows them to say, “If you think we’ve done something wrong, don’t bother to send your man; ours is too busy to meet.” Nate Jones and I discuss the question of Silicon Valley overreach in this episode. (In that vein, I apologize unreservedly to John D. Rockefeller, to whom I mistakenly attributed the quote.) The sad result is that a promising technological adjunct to contact tracing has been delayed and muddled by ideological engineers to the point where it isn’t likely to be deployed and used in a timely way.

    Another lesson we draw in today’s episode is for authoritarian governments: Worry less about Cyber Command and more about NGOs. Citizen Lab has released a great paper making the case that WeChat monitors its users outside China, not to suppress their speech but to flag documents and images for later suppression inside China. Ironically, Matthew Heiman notes, Western users of WeChat who circulate human rights material are giving China’s censors the ability to hash and block that material as soon as it crosses the Great Firewall.

    Meanwhile, Nate points out, Bellingcat has done for Russia’s GRU what Citizen Lab did for China. Perhaps inspired by Germany’s indictment of Dmitry Badin for hacking the Bundestag, Bellingcat doxes him to a fare-thee-well, finding his phone number, car registration, GRU office address and preposterously bad password.

    David Kris explains the intersection of export control law and the Law of Unintended Consequences, as the U.S. Commerce Department finds that its efforts to isolate Huawei may be excluding U.S. firms from some standards bodies.

    Anthony Anscombe joins us from Steptoe’s class action practice to unpack the recent Seventh Circuit decision on Article III standing and Illinois’s Biometric Information Privacy Act.

    Israel’s passive-aggressive Supreme Court, meanwhile, has found a second way to say, “Meh,” to the Israeli government’s use of intelligence tools to do contact tracing.

    Matthew lays out what’s at stake as the Senate tries again to pass its FISA bill. That may happen as early as today.

    In short hits, everybody’s government hackers are adding COVID-19 to their targets, going after everyone from the WHO to coronavirus researchers. I make an effort to explain why Apple has brought a DMCA copyright lawsuit against Corellium. It’s all about the “chilling effect” on security research. And maybe one particular Five Eyes researcher. I make the case for Justice Department intervention on Corellium’s behalf—or at least Azimuth’s. Banjo’s CEO steps down. And where is Jean-Paul Sartre when you need him? He’s the only one who can resolve the odd dispute over “authenticity” between Twitter and the U.S. State Department.

    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.