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256. The National Bloviation Strategy

I know. The title could be talking about pretty much any national strategy written in the last 15 years. And that’s the point. In the interview, Dr. Amy Zegart and I discuss the national cyber strategy and what’s wrong with it, besides all the bloviating. We also explore the culture clash between DOD and Silicon Valley (especially Google), and whether the right response to the Mueller report would be to conduct a thorough investigation into how the Intelligence Community and Justice handled the collusion allegations at the start of the Trump Administration. As a bonus, Amy answers this burning question: “If a banana republic is a country where losing an election means getting criminally investigated, what do you call a country where winning an election means getting criminally investigated?”

In the news roundup, we talk about the New Zealand massacre and whether six months from now it will feel as though we overreacted to distribution of the video of the attack. Along the way, we  are amazed to discover that New Zealand actually still has a “Chief Censor.”

If you thought the Boeing 737MAX approval cast the FAA in a bad light, there’s some good news for that embattled agency: The FDA is even worse at dealing with software risks. Matthew Heiman and I talk about the agency’s unimpressive handling of a flaw that would let hackers control defibrillators implanted in patients.

Conservatives v. Silicon Valley. Apparently looking for Odd Couple of the Month coverage, Sen. Josh Hawley is sounding all Sen. Elizabeth Warren-y about Facebook and Silicon Valley. And Devin Nunes is renewing claims of social media bias against conservatives. Indeed, he’s putting his lawyers where his mouth is, suing Twitter and his fake Twitter Mom for defamation. It’s an uphill battle, but I would really love to read the internal Twitter emails about Nunes if his case gets to discovery.  That's his best chance to show actual malice.

Matthew tells us that the latest European fine of $1.7 billion means that Google has been hit with $7.6 billion in EU fines since 2017 – mostly for “in the eye of the beholder” abuses of a dominant position.

Jennifer Quinn-Barabanov makes a guest appearance to read the tea leaves in the SCOTUS remand of a cy pres case without decision. Bottom line: The Court is likely to cut back on cy pres settlements, which may be good policy, but which also means trouble for defendants as well as the plaintiffs’ bar.

Matthew and I talk about the most fun caper involving North Korea in the last fifty years (since most of the other capers seemed to end in people dying). This time, the good guys got away after physically pwning the entire North Korean embassy in Spain. Spanish papers claim it was the CIA, but that’s what Spanish papers would say, isn't it? This time, though, I’d like to think it’s true.

Maury Shenk explains why US chip makers don’t actually want massive new guaranteed orders as part of a China trade deal.

And Matthew tells us how Egypt is taking advantage of the cover provided by Australia and New Zealand to tighten control of websites and social media accounts that pose a “threat to national security.”

Download the 256th 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 the firm.

255: Imitation is the sincerest form of flattery: Russia and China revamp their military technologies

In our interview, Elsa Kania and Sam Bendett explain what China and Russia have learned from the American way of warfighting – and from Russia’s success in Syria. The short answer: everything. But instead of leaving us smug, I argue it ought to leave us worried about complacency followed by unpleasant military surprises. Elsa and Sam both try to predict where the surprises might come from. Yogi Berra makes an appearance.

In the News Roundup, David Kris explains the Fourth Circuit’s decision to turn a hostile spouse-swap dispute into an invitation to screw up the law of stored electronic communications for a generation.

And in other litigation, a Trump-appointed judge dismisses a lawsuit charging Silicon Valley with unlawfully censoring the right. Nate Jones and I agree that, while the decision is broadly consistent with law, it may spell trouble for Silicon Valley in the long run. That’s because it depends on an idiosyncratic DC Court of Appeals interpretation of the District’s public accommodation law. I speculate that Alabama or Texas or Mississippi could easily draft a law prohibiting discrimination on the basis of viewpoint in public accommodations like,say,  Internet platforms.

Nick Weaver and I note the UN report that North Korea has stolen $571 million, much of it in cryptocurrency. I ask whether the US Treasury could seize those ill-gotten bits. Maybe, says Nick, but it would really bollix up the world of cryptocurrency (not that he minds).

I explain that DHS will be rolling out facial scanning technology to a boatload of US airports – and why there’s no hidden privacy scandal in the initiative.

And this story kind of makes you wonder about their banks and their chocolate: Nick gloats as Switzerland’s proposed Internet voting system follows his predicted path from questionable undertaking to deep, smoking crater.

Elsa Kania and I offer praise for the Navy Secretary’s willingness to accept scathing criticism of the Navy’s cybersecurity.

And Nick and I close with an effort to draw lessons from the disastrous software and human factor interactions at the heart of the Boeing 737 MAX crashes.

Download the 255th 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 the firm.

254. The Cyberlaw Podcast -- without Stewart Baker at last!

You've begged for it in the comments, so here it is.  With Stewart Baker off the grid at the bottom of the Grand Canyon, literally, David Kris, Maury Shenk, and Brian Egan take merciless advantage to extol the virtues of data privacy and the European Union.

Maury interviews James Griffiths, a journalist based in Hong Kong and the author of the new book, The Great Firewall of China: How to Build and Control an Alternative Version of the Internet.

In the news, David and Brian discuss last week’s revelation that the NSA is considering whether it will continue to seek renewal of the of the Section 215 “call detail record” program authority when it expires in December. We plug last week’s Lawfare podcast in which the national security advisor to House Minority Leader McCarthy made news when he reported that the NSA hasn’t been using this program for several months. David waxes poetic on the little-known and little-used “lone wolf” authority, which is also up for renewal this year.

We explore the long lineup of politicians and government officials who are coming up with new proposals to “get tough” on large technology companies. Leading the charge is Senator Warren, who promises to roll out a plan to break up “platform utilities” – basically, large Internet companies that run their own marketplaces – if she is elected president. Not to be outdone, the current chair of the Federal Trade Commission has urged that Congress provide new authorities for the FTC to impose civil enforcement penalties on tech (and presumably other) companies that violate their data privacy commitments. And last – but never least – the French finance minister announced that he will propose a 3% tax on the revenue of the 30 largest Internet businesses in France, most of which are US companies.

David discusses how one technology company is using a more familiar tool – litigation – to fight back against Chinese companies for creating and then selling fake Facebook and Instagram accounts.

In the “motherhood and apple pie” category, Maury explains French President Macron’s call for the creation of a “European Agency for the Protection of Democracies” to protect elections against cyberattacks. And Brian covers a recently re-introduced bill, the Cyber Deterrence and Response Act, which would impose sanctions on “all entities and persons responsible or complicit in malicious cyber activities aimed against the United States.”

If you are in London this week, you can see James Griffiths during his book tour. On March 13, he will be at the Frontline Club, and on March 14, he will be at Chatham House. You can also see him later this month at the Hong Kong Foreign Correspondents Club.

Download the 254th 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 the firm.

Interview on cybersecurity, European privacy, Snowden, and more

The second half of my interview with Cyber Insecurity News has been posted, here.  It deals with a lot of stuff from my career, including DHS, European privacy negotiations, Snowden, and cybersecurity.  (The first half is here.)  Here's an excerpt that captures some of my thinking on cybersecurity:

CIN: Is the government providing enough intelligence information—threats they’re aware of—to companies? I know that’s sometimes a complaint that companies have.

SB: Yeah, I do hear that. And I take that with a grain of salt. One thing I’ve learned from watching the intelligence community for 25 years is that intelligence in the abstract is almost never useful. For the intelligence to get good, you have to have a customer who understands the intelligence and how it’s being collected, and can tell the intelligence officers exactly what he wants and what’s wrong with the intelligence that has been collected. You don’t get good intelligence if you just try to go out and steal the best secrets you can. Because you usually don’t know what secrets really matter. You need a very sophisticated consumer who can say, “OK, I see what you’ve brought me. There are some interesting things here. But it isn’t exactly what I need. Go look for X.” The spies on their own would never think to look for X. They’re just not as deep into the technology or the situation as the consumer. So for an exchange of intelligence to be really useful, you have to make the companies your customer. I don’t think that’s likely to happen. Part of the private sector’s unhappiness with what they’re being given is their assumption that since what they got wasn’t that useful, they must not have gotten the good stuff. That’s not how intelligence works, in my experience. There isn’t “good stuff” just hiding out there. The good stuff—you have to dig it out as a customer. That isn’t likely ever to be something that the intelligence community does for individual companies.

 

CIN: What can companies be doing better?

SB: I think companies need to ask themselves—and they’re starting to do this—not so much what’s on my checklist of technologies to deploy, but who wants my stuff? And what tactics and tools are they using this week to get it? Those are things that are knowable. Those are things that you can get from intelligence. You can get it from the private sector forensics people as well. So knowing that there’s a North Korean or Chinese campaign to get information on, let’s say, windpower means that, if you’re a windpower company, you suddenly have a whole new set of adversaries, and you’re going to have to spend a whole hell of a lot more money on cybersecurity or lose your technology.  You constantly have to do a cost-benefit analysis there. But the key is knowing who’s breaking into your system, and why: Are they motivated by money, are they motivated by the desire to steal your technology? Are they criminals or governments? All of those are things that should be part of your cybersecurity planning.

 

CIN: You just said the magic word: “money.” When I talk to CISOs at companies, if we talk long enough and they feel comfortable enough, they will almost always say something about budgets, and how the management of companies so often underestimates how much is needed. And they routinely underfund cybersecurity budgets. What do you think?

SB: I agree. But I would also like to speak up for management and the board. Their most common complaint is: “My CISO comes in and says, ‘Bogeyman, bogeyman, bogeyman! Give me more money!’ He tells me that the North Koreans could do these things to me. Should I be worried about that or not? I feel as though I’m chasing goal posts that will always recede.” So there is a culture clash there. That’s one of the reasons that I like a model that asks, “Who wants my stuff, and what are they doing to get it?” Once you have that answer, you can also ask the question, “What would it cost to make sure they don’t get it? What do I have to do to defeat every one of the tools and tactics they currently are using?” Then, when I know how much that will cost, I can compare the cost of letting them win to the cost of making sure they don’t.  So I think you can reduce this to a cost-benefit analysis, if you’re disciplined about identifying who’s likely to attack companies like yours, and if you have up-to-date intelligence on how they’re getting into the systems they attack.

 

CIN: If you were the country’s cybersecurity czar, what would be the first things you would do?

SB: I would say, “If you are in a business that the lives of a large number of Americans depend upon—pipelines, refineries, electrical power grids, water, sewage systems—you’re going to have to meet certain cybersecurity standards. We’re going to continue to use regulatory agencies that you are familiar with, if you are regulated already at the federal level, but we’re going to find a way to make you meet these standards. And when we’re done getting you to meet those standards, the people that you do business with are going to have to meet those standards. We can’t afford to have weak links in our security process.” I hate to say that, because I see all the downsides to regulation. It slows everything down. It raises the cost of everything. It locks in a lack of competition. But there’s no obvious alternative, other than saying, “If you’re hacked, we’re going to expropriate your company, because you don’t deserve to be in business.” That would motivate people—sort of like the death penalty for companies. I don’t think we really want to do that. So, better to come up with a constantly shifting set of best practices, and impose them on people who currently don’t care enough to adopt them. They’re not evil people; they just don’t have enough skin in the game to worry about security.

 

CIN: What advice would you like to dispense before we conclude this conversation? Anything special you have to say to general counsel?

SB: Yes. It’s from a theme that we’ve been talking about—the need to think about who your adversary is. And it’s one of the hidden advantages in having your general counsel involved in cybersecurity. Engineers are used to protecting against inanimate nature. They’re really comfortable asking whether gravity is going to bring a bridge down. They’re much less comfortable asking, “What if the Russians wanted to bring it down, and they had all the explosives they needed?” They don’t do adversarial thinking as a routine part of their job description. And neither do the risk managers, who are most comfortable asking questions like, “Is this a risk we can self-insure, or do we have to get insurance for it?” In contrast, if you’re a good general counsel, you wake up every day and you say, “I know there are people—maybe competitors, maybe the plaintiffs bar, maybe governments—people out there who want to do my company harm using legal tools. I need to know who they are. I need to know what tools they will use to attack, and I need an early warning as they develop new ones. When the plaintiffs bar develops new lawsuits, I want to watch that. I hope that they try them out on somebody else first. But if they don’t, my job is to figure out what we will do in response.” In other words, the way of thinking about cybersecurity that I’m advocating is a way of thinking about corporate interests that lawyers are already familiar with. It should give general counsel a little bit of confidence that they have a perspective to bring to cybersecurity that isn’t just, “What will the regulators think if we don’t do this?” They can insist on more deeply adversary-based cybersecurity planning.

 

CIN: Based on your experience as an outside lawyer who advises general counsel, do you think that many GCs have a sense that cybersecurity is a really important part of their jobs, and have a seat at the table at their companies to help tackle it?   

SB: Yes and yes. First, you’d be crazy as a CEO not to give your general counsel a seat at the table, because liability is a significant part of the calculation here. In practically every tabletop exercise we run, people start turning to the general counsel almost routinely. It’s odd how often questions that easily could be answered by somebody else—there’s no necessary connection to the law—end up getting lateraled to the general counsel for one reason or another. I’m a little less confident that general counsel always bring to the task a breadth of strategic thinking that maximizes their value to the company. They will always say, “I can tell you what our regulatory obligations are. I can tell you what our privacy statement says. I can tell you what the liability decisions of the court might be, or what the FTC would say about this.” Those are all things that general counsel should be doing. I feel a little bit like a proselytizer when I say, “No, that isn’t enough; what you need to bring to this, in addition to all that, is the sense that your company is engaged in an eternal battle with institutional opponents, and that your job is to make sure your company is as fully armed for that battle as possible.”

253. Where angels fear to tread: NewsGuard takes on fake news.

Our interview is with two men who overcame careers as lawyers and journalists to become successful serial entrepreneurs -- and who are now trying to solve the “fake news” problem. Gordon Crovitz and Steve Brill co-founded NewsGuard to rate news sites on nine journalistic criteria. Using, of all things, real people instead of algorithms. By the end of the interview, I’ve confessed myself a reluctant convert to the effort. This despite NewsGuard’s treatment of Instapundit, which Gordon Crovitz and I both read regularly but which has not received a green check.

In the news, Klon Kitchen talks about the latest on cyberconflict with Russia: CYBERCOM’s takedown of the Russian troll farm during 2018 midterms. The Russians are certainly feeling abused. They are using US attacks to justify pursuing their “autonomous Internet,” and they’ve sentenced two Kaspersky Lab experts to long jail terms for treason, likely because of their law enforcement cooperation with the United States.

Gus Hurwitz, Klon, and Nick Weaver muse on the latest evidence that information intermediaries still haven’t found a way to deal with wayward members of their ecosystems. Amazon marketplace sellers will now have the ability to remove what they deem counterfeit listings. Amazon has let the FTC discipline fake paid Amazon reviews. And Facebook is being criticized for the costs of using human beings to enforce Facebook’s content rules. (The failure of Silicon Valley to get a handle on this problem is, of course, the key to NewsGuard’s business model.)

Finally, just to give me an excuse to link to this Dr. Strangelove clip, Gus tells us that not even our prosthetic arms are safe from IoT hacking.

Download the 253rd 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 the firm.

How the Appropriations Bill Can Strengthen ‘Remain in Mexico’

I recently wrote a piece for Lawfare on illegal immigration and the "compromise" appropriations bill that avoided another government shutdown.  Here's the introduction: 

While Congress and cable news chatter emergency powers and President Trump’s wall, there’s a far more important immigration fight under way on the southwest border. At a time when judicial deference to the executive on immigration law has nearly vanished, the country is one court ruling away from a disastrous immigration outcome. It was summarized this way by one Honduran caravan member, who traveled to the border because: “she had heard … that bringing her daughter would guarantee them admission into the United States.”

She got it right—with one caveat. To avoid this outcome, the Trump administration is now telling applicants to wait for their asylum hearings in Mexico instead of the United States. That “remain in Mexico” policy, however, is fiercely contested and could be set aside by the courts tomorrow. If it is, anyone who crosses the border with a son or daughter will be more or less guaranteed admission, plus a work permit for some years, plus a realistic shot at staying in the country illegally for a lifetime.

I worked at the Department of Homeland Security (DHS) under President George W. Bush, and I played a large role in shaping and trying to pass comprehensive immigration reform legislation. I’m not a knee-jerk immigration restrictionist. But you don’t have to be a restrictionist to think that it is bad policy to offer years of legal U.S. residence to anyone who can pass a background check and walk across the southwest border with a child in tow. There are probably a billion people around the globe who’d take that offer tomorrow. Worse, the policy effectively invites busloads of children and parents to cross without notice in some remote spots, swamping Border Patrol stations that were never built for child care. From a national security point of view, these mass border crossings are a major vulnerability; they can be exploited by smugglers who use them as cover to sneak in drugs and dangerous individuals elsewhere along the border while Border Patrol agents are busy handing out diapers and juice boxes.

So a lot depends on the Trump administration’s effort to cut this Gordian knot of laws and court rulings with a “remain in Mexico” policy. A group of non-governmental organizations have already challenged the new approach in court, and they stand more than a decent chance of prevailing. Avoiding an adverse ruling will require creative lawyering and and aggressive international diplomacy on the government’s part. In that effort, the administration may have gotten some unintended help from the drafters of the “compromise” appropriations bill that avoided another government shutdown. That, at least, is the thesis of this article.

Here's the rest: https://www.lawfareblog.com/how-appropriations-bill-can-strengthen-remain-mexico 

252: In hacker Olympics, Russia wins gold and North Korea (!) silver

This week, we interview Dmitri Alperovitch of CrowdStrike on the company’s 2019 Global Threat Report, which features a ranking of Western cyber adversaries based on how long it takes each of them to turn a modest foothold into code execution on a compromised network. The Russians put up truly frightening numbers – from foothold to execution in less than twenty minutes – but the real surprise is the North Koreans, who clock in at 2:20. The Chinese take the bronze at just over 4 hours. Dmitri also gives props to a newcomer – South Korea – whose skills are substantial.

In the News Roundup, I cheer the police for using “reverse location search warrants” to compel Google to hand over data on anyone near a crime scene. Nick Weaver agrees and puts the focus on Google and others who collect the data rather than police who use it to solve crimes.

A committee of the UK House of Commons has issued a blistering final report on disinformation and fake news. I offer this TL;DR: that all right-thinking Brits must condemn Facebook because Leave won, just as all right-thinking Americans must condemn Facebook because Trump won. Maury Shenk takes a more nuanced view.

Nick and Dmitri explain just how scary the growth of DNSpionage has become. The only thing as scary seems to be the continuing effort to put voting systems on the Internet. Nick reacts to this in the typical way of his people.

The mysterious Facebook Title III case won’t be unsealed, so we really still don’t know what the Justice Department was trying to get Facebook to do.

The New York Times claims that India is proposing Internet censorship à la Chinois. I think that’s just the New York Times’s bias showing and that India is mainly imitating Europe. Maury rides to the New York Times’s rescue.

In breaking news, The Cyberlaw Podcast has developed AI podcasting so good we don’t dare tell you about it.

This Week in Chutzpah: Alleged hacker Lauri Love has lost his bid to recover the data he stole. I want to know why we didn’t give it back to him with a couple of keyloggers installed. The temptation to decrypt  it – and give prosecutors new evidence – would be irresistible.

In closing, Nick and I dwell on YouTube’s pedophile comment problem and whether recommendation engines are more to blame than human nature.

In other news:

• Our colleagues Nate Jones and David Kris have launched the Culper Partners Rule of Law Series. Be sure to listen as episodes are released through Lawfare.
• Do you have policy ideas for how to improve cybercrime enforcement? Our friends at Third Way and the Journal of National Security Law & Policy are accepting proposals for their upcoming Cyber Enforcement Symposium. You can find the call for papers here.

Download the 252nd Episode (mp3).

Episode 251: In which we draft an Executive Order on alien abductions

The backlash against Big Tech dominates this episode, as we cover new regulatory initiatives in the US, EU, Israel, Russia, and China. The misbegotten link tax and upload filter provisions of the EU copyright directive have survived the convoluted EU legislative gantlet. My prediction: the link tax will fail because Google wants it to fail, but the upload filter will succeed because Google wants YouTube’s competitors to fail.

Rumors are flying that the FTC and Facebook will agree on a billion-dollar-plus fine on the company for failure to adhere to its consent decree. My guess? This is not so much about law as about the climate of hostility around the company since it took the blame for Trump’s election.

And, in yet another attack on Big Tech, the EU is targeting Google and Amazon for unfair practices as sales platforms. Uncharacteristically, I refuse to criticize the EU over this policy.

Artificial intelligence is so overworked a tech theme that it has even attracted the attention of the White House and DOD. We ask a new contributor, Jessica “Zhanna” Malekos Smith, to walk us through the President’s Executive Order on AI. I complain that it’s a cookie-cutter order that could as easily apply to alien abductions. DOD’s AI strategy, in contrast, is somewhat more substantive.

If you can’t beat ‘em, ban ‘em. Instead of regulating Big Tech, Russia is looking to take its own Internet offline in an emergency. The real question is whether Russia is planning to cause the emergency it’s protecting itself against. If so, the West is profoundly unready.

CFIUS is contagious! Brian Egan tells us that under US pressure Israel is considering restrictions on Chinese investment as the world keeps choosing sides in the new cold war.

China’s Ministry of Public Security is now authorized to conduct no-notice penetration testing of Internet businesses operating in China. I must say, it was nice of them to offer the service in beta to OPM, Anthem, and Equifax. Speaking of which, this  mayspell (more) trouble for Western firms doing business in China.

Brian touches on Treasury’s new sanctions against Iranian organizations for supporting intelligence and cyber operations targeting US persons. It turns out that the hackers had help – and that there is no ideology so loathsome it can’t win converts among Americans.

Nate Jones describes the EU’s plan to use “cyber sanctions” to fend off hackers during upcoming elections.

This Week in Old Guys You Shouldn’t Mess With: Nate reveals how 94-year-old William H. Webster helped take down a Jamaican scam artist. Of course, if he was any younger, he probably wouldn't have picked up when the landline rang.

Our colleagues Nate Jones and David Kris have launched the Culper Partners Rule of Law Series. Be sure to listen as episodes are released through Lawfare.

Do you have policy ideas for how to improve cybercrime enforcement? Our friends at Third Way and the Journal of National Security Law & Policy are accepting proposals for their upcoming Cyber Enforcement Symposium. You can find the call for papers here.

Download the 251st 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 the firm.

NSA and Silicon Valley -- 25 years of history

This is admittedly self-indulgent, but I was recently interviewed by Cyberinsecurity News about my involvement in technology and national security policy over the years, and the result might be of interest to those who weren't there for the fights that still shape the policy environment.  A sample:

    Now, you cannot overestimate how significant the decryption victories of World War II were in shaping NSA’s culture. They were, one way or another, part of breaking Japanese codes, and Nazi codes, and everyone agreed that those decryption achievements shortened the war and maybe made it possible to win the war. Given the stakes, no one wanted to be caught in the situation again where we did not have an overwhelming advantage with respect to dealing with foreign nations’ codes. At the same time, the Soviets, who had seen that experience, had developed formidable capabilities of their own. We only occasionally got little glimpses of what was going on inside Russian communications, because their encryption was so good and so disciplined. So everybody was aware that what we had achieved in World War II was not ours by birthright. It was going to have to be something we scrapped and clawed at if we wanted to get that advantage again. So NSA was reluctant to surrender any advantage, including export controls on encryption.

     For Microsoft and the rest of Silicon Valley, they were already deep into the cycle of destroying other people’s businesses by turning them into software. Microsoft had done that successfully and become a massive new company at a time when new companies were rare. Basically by eating other people’s businesses and saying, “Oh, sorry about that!” and moving on. I think they started out with the assumption that NSA’s encryption and decryption advantage was just one more business model that was not going to survive Microsoft’s software advantages. They were more confident maybe than they should have been, but they had plenty of experience and a lot of achievement behind them. You had two very proud, very self-confident organizations dueling with each other over matters that each of them thought was central to their future.

 

More here: http://www.cyberinsecuritynews.com/stewart-baker-1

250. We give you Weaver

If you get SMS messages on your phone and think you have two-factor authentication, you’re kidding yourself. That’s the message Nick Weaver and David Kris extract from two stories we cover in this week’s episode of The Cyberlaw Podcast – DOJ’s indictment of a couple of kids whose hacker chops are modest but whose social engineering skillz are remarkable. They used those skills to bribe or bamboozle phone companies into changing the phone numbers of their victims, allowing them to intercept all the two-factor authentication they needed to steal boatloads of cryptocurrency. For those with better hacking chops than social skills, there’s always exploitation of SS7 vulnerabilities, which allow interception of text messages without all the muss and fuss of changing SIM cards.

Okay, it ain’t “When Harry Met Sally,” but for a degraded age, “When Bezos Exposed Pecker” will have to do. David keeps us focused on the legal questions: Was the Enquirer letter really extortion? Would publication of the pics be actionable? And is there any way the Enquirer could get those text messages without someone committing a crime? Plus, of course, whether the best way to woo your new girlfriend is to send her brother to jail.

Social media – privacy law threat or competition law menace? That’s the question European (naturally) regulators are weighing. But Matthew Heiman and I have a pretty good idea what their answer will be: Both! We look at the Twitter-mobbing of Facebook by regulators and ask whether the competition charges make more sense than the privacy claims.

Looks like the net effect of the Obama-Xi agreement on not stealing commercial secrets is that a better class of Chinese officials is stealing our commercial secrets. President Xi kicked the PLA to the curb and brought in the professionals from China’s Ministry of State Security. So now Chinese tradecraft is a little better, and DOJ is indicting MSS officials instead of PLA soldiers. David sums up.

NERC is proposing a $10 million fine for cybersecurity violations on a utility reported to be Duke Energy. Matthew and I are shocked. Not by the fine, which was negotiated, or by the violations, many of them self-reported, but by the cheese-paring, penny-ante nature of so-called cybersecurity enforcement at NERC and FERC. All this Sturm und Drang to make sure utilities use six-character passwords? When security guys complain about compliance trumping security, these NERC rules will be Exhibit A.

Finally, add another chapter to the Annals of Failed Civil Liberties Campaigns, as EFF and likeminded reporters try to get us outraged about the FBI using court orders to identify a North Korean botnet. Nick points out that academics have been conducting research that is more intrusive for years without unduly disturbing even conservative university lawyers.

Well, maybe one more item: I close by thanking HoyaSaxaSD for a podcast review that honors our own inimitable Nick Weaver:

“I got a fever, and the only cure is more Weaver. Love the show. I’m a lawyer but not in tech or security law, but it’s still fascinating. My teenage sons also like most episodes, especially the Nick Weaver segments. And I concur. There needs to be Weaver in every episode, and more of him. In fact, an hour of Weaver and Baker debating/discussing would be the perfect show.”

In return, I am moved to channel Peggy Lee. And if more good reviews don’t pour in, I may make that performance a weekly feature. David Kris, I’m sure, would consider that extortion, on the ground that no one has a right to butcher Peggy Lee’s oeuvre like that.

Do you have policy ideas for how to improve cybercrime enforcement? Our friends at Third Way and the Journal of National Security Law & Policy are accepting proposals for their upcoming Cyber Enforcement Symposium. You can find the call for papers here: https://www.thirdway.org/letter/2019-cyber-symposium-call-for-papers

Download the 250th 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 the firm.

Four principles to guide the US response to cyberattacks

My latest op-ed tries to open the Overton window on responding to cyberattacks:

Cyber weapons have allowed Russia to reinvent deterrence on the cheap. Recent reports reveal a prolonged, systematic, and not particularly subtle Russian campaign to infiltrate the U.S. power grid.

It raises the prospect that Russian strongman Vladimir Putin has the ability to cut off power to large parts of the United States, as he has done already in Ukraine. He has “prepare[d] the battlefield, without pulling the trigger,” said one former U.S. official.

All of which raises the question: how to deter him? After all, where Putin goes, Iranian mullahs and Kim Jong Un will not be far behind. If any of these actors knock out even a small segment of our power grid, we will need to retaliate, and not with restraint. It’s time to start thinking the unthinkable.

Four principles should guide American decision makers in developing tough responses to other nations’ cyber provocation ...

Read the rest at Fifth Domain. 

249. Black swans, black ops, BlackCube, and red herrings

In this episode, I interview Chris Bing and Joel Schectman about their remarkable stories covering the actions of what amount to US cyber-mercenary hackers. We spare a moment of sympathy for one of those hackers, Lori Stroud, who managed to go from hiring Edward Snowden to hacking for the UAE in the space of a few years.

In the news, I ask my partner Phil Khinda whether the $29 million Yahoo breach settlement opens a new front in breach derivative litigation or is a black swan event. He says it’s more of a red herring – and explains why.

This week in black ops: I ask Nate Jones to comment on the tradecraft used in an apparent effort to smear Citizen Lab for its reports on NSO. My take: This feels a lot like what BlackCube did for Harvey Weinstein, except that this was the low-budget version.

I'm not sure the indictments are working.  The Russians are so far from being shamed that now they’re engaged in fake hacking. Dr. Megan Reiss notes Special Counsel Mueller’s recent claim that Russians are leaking discovery materials and pretending they came from a hack of the counsel’s office. Remember the remarkably adroit robot that turned out to be a Russian in a robot suit?  That's what this reminds us of.

Maury Shenk and I discuss Google’s latest imitation of Apple’s “law enforcement lockout” feature and Google's claim that hurting law enforcement was an “unintended side effect.” I call BS.

Maury also notes the flap over a flaw in Apple’s FaceTime that allows for eavesdropping. Predictably, New York State is investigating.

And in possibly related news, Apple went out of its way to publicly embarrass Facebook and Google over their use of corporate certificates to sideload apps to record the browsing habits of paid volunteers. I'm not convinced that the fuss is justified.  Whatever those users sold their data for, it's a lot more than I'm getting.

Quick hits:

This week in dogs biting men: Ukraine says Russia is trying to disrupt its upcoming election, and the Pentagon is reportedly failing to stay ahead of cyber threats. Megan covers the first and Nate the second.

I offer one and a half cheers for Japan’s pioneering and mildly intrusive survey of bot-vulnerable IoT devices. Unfortunately, it's not intrusive enough to really address the problem.

Finally, EPIC is calling on the FTC to impose a $2 billion fine, structural changes, and more on Facebook, claiming that “the algorithmic bias of the [Facebook] news feed reflects a predominantly Anglo, male world view.” If you still need evidence that privacy law is the legal equivalent of a Twitter mob – an always-ready tool for punishing unpopular views – EPIC’s filing should do the trick.

Download the 249th 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 the firm.

248. My Right to be Forgotten is Your Right to Die

If the surgeon about to operate on you has been disciplined for neglecting patients, wouldn’t you like to know? Well, the mandarins of European Union privacy law beg to differ. Google has been told by a Dutch court not to tell anyone about the disciplined doctor, and there seems to have been a six-month lag in disclosing even the court ruling. Gus Hurwitz and I are appalled. I repeat my long-standing view that in the end, privacy law just protects the privileged. Gus agrees.

This week's interview is with John Carlin, author of Dawn of the Code War. It’s a great inside story of how we came to indict China’s hacker-spies for attacking US companies.

In other news, the Illinois Supreme Court has demonstrated just how bad Illinois’ biometric privacy law is – by the simple expedient of applying it the way it’s written.

Dr. Megan Reiss and I air our ambivalence about the latest site hosting collections of doxed messages. We lack enthusiasm for indiscriminate doxing of the kind highlighted on Distributed Denial of Secrets, but if it’s got to happen, it couldn’t happen to a nicer Russian dictator. 

Nick Weaver explains the DHS emergency order telling civilian agencies to protect themselves against DNS hijacking, and why the shutdown may have made those agencies more vulnerable.

Nick and I debate YouTube’s latest algorithmic tweak to avoid recommending “borderline” material. He notes that the  tweak is to correct an algorithm that used to push people toward extremes. I counter that this tweak turns out to be a suspiciously good way for YouTube Social Justice Warriors to suppress videos they don’t like but can’t actually show to be violating YouTube’s terms of service.

Speaking of which, maybe the real singularity will be when Silicon Valley SJWs join forces with Beijing to produce technology to suppress WrongThink once and for all. If so, the singularity is nigh, in the form of a Chinese app that allows you to identify all the people around you who deserve to be shamed. Of course, when it comes from Twitter, instead of identifying those who haven’t paid their debts, the app will identify anyone who ever wore a MAGA hat. And it will have a cooler name. Maybe #Punchable.

Download the 248th 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 the firm.

247. “If I save Earth, you’re gonna owe me.”

So says the remarkable Jeff Jonas, CEO of Senzing. And he’s got a claim to be doing just that. A data scientist before data science was cool, Jeff has used his technical skills and an intuitive grasp of complex data problems to stop card counters in Las Vegas and terrorists targeting the US, and then to launch an initiative making voter registration more accurate and widespread. Most recently, in the course of an effort to improve maritime security around Singapore, he also found a key to identifying asteroids that are about to collide with each other and head off on a new course (one that might intersect with, well, ours).

The media has been hyping a strikingly bad magistrate judge’s opinion giving 5th Amendment protection to biometric phone security. This leads Gus Hurwitz and me to question why Congress ever promoted US magistrates to “magistrate judges” in the first place. We suggest striking the word “judge” from the title given to these Article I judicial aides; call it the Truth in Judging Act.

Congress and the President can’t even agree on a compromise that would end the partial government shutdown. So what genius decided that our security from terrorist attacks should depend on Congress and the President agreeing every couple of years on yet another part of our counterterrorism system? Like it or not, though, 2019 will feature another cliffhanger debate over several national security provisions of FISA  that are scheduled to come to an end unless renewed. Jamil Jaffer and David Kris talk about the provisions and possible outcomes. I plead for a compromise that takes seriously the Trumpist concern about partisan abuse of the law.

I suspect the government would have imposed serious fines on the owner of EDGAR for enabling a new form of insider trading -- if the SEC didn't own EDGAR itself. Jamil and Gus debate the harder question: How can hackers with access to guaranteed market moving info manage to make only $4 million in six months of trading?

The Department of Justice’s Office of Legal Counsel has reversed an Obama-era interpretation limiting the scope of federal criminal laws governing online gambling. David provides the background; I introduce our listeners to the Baptist-bootlegger coalition.

If you would like to hear more from Jeff Jonas and you’ll be in London on January 29, be sure to attend his talk, “AI for Entity Resolution,” at the SAGE Ocean speaker series. Event details can be found here.

Download the 247th Episode (mp3).

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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!

Why the FBI's counterintelligence probe of President Trump should be investigated

Readers of this blog may be interested in my Lawfare post about the news that the FBI made President Trump the subject of a counterintelligence investigation after he fired their boss.  My take:

The political and bureaucratic motives mixed into this incident are reminiscent of the motives mixed into the decision to launch an investigation of Russia and the Trump campaign, the decision to rely on Christopher Steele’s research despite his partisan funding, and the decision to interrogate national security adviser Michael Flynn in the slipperiest of fashions. There are reasons why all of these things might have seemed necessary to honest, committed cops just doing their job. But they also offer a roadmap for how to abuse counterintelligence authority to serve partisan ends—a roadmap that more or less begins where the civil liberties protections of the 1970s end.

My concern is that we’re not taking that risk seriously because so many former officials and commentators believe that President Trump deserves all this and more. Some of them still hope that the election of 2016 can be undone, or at least discredited. This leads to a perseverating focus on leaks and scraps from the investigation and a determined lack of concern about the investigation’s sometimes tawdry origins. (Yes, I’m talking to you, #BabyCannon!)

If we’re going to prevent future scandals, we need to look at both. We need to know the answers to a lot of questions that are not being seriously addressed today: To what extent was politics involved in the decision to open the Trump-Russia investigation; to what extent did politics drive its direction; to what extent was politics involved in the Obama administration’s transition intelligence leaks; and, finally, to what extent was politics involved in adding the president to the counterintelligence probe?

The only independent review of any of these questions seems to be the investigation launched by Justice Department Inspector General Michael Horowitz. He’s examining the FISA application for Carter Page. That’s a good start, but it’s only a start. It’s a commonplace insight that President Trump’s norm-defying conduct has triggered norm-defying payback by others. I’m sure we’re going to learn about the first, but we can’t ignore the second.

It’s time to expand the Horowitz inquiry, or something like it, into all of these events.

246. Russia’s Successful Search for Deterrence on the Cheap

Brazen Russian intrusions into the US electricity grid lead our episode. I ask Matthew Heiman and Nick Weaver whether Russia intended for us to know about their intrusions (duh, yes!) and how we should respond to the implicit threat to leave Americans freezing in the dark. Their answers and mine show creativity if not exactly sobriety.

 

In what may be good news about emerging European sobriety, Google gets a favorable opinion from the advocate general to the European Court of Justice (ECJ) on the question of whether to extend Europe’s “right to be forgotten” censorship regime to benighted Americans, and Turks, and Russians, and Chinese. Most of those countries would be glad to impose their censorship regime on Europeans, consideration of which may be enough to overcome the America Derangement Syndrome the ECJ has displayed in earlier tech privacy cases.

 

DHS was right, and EFF was wrong. That’s the lesson Maury Shenk, Nick, and I derive from the latest drone crisis at Gatwick Airport. In response, the UK is seeking police powers that DHS recently obtained – over EFF’s bitter opposition.

 

Matthew unpacks the Fourth Circuit ruling that a politician cannot block constituents on her official Facebook page because it has become a public forum.

 

Nick explains how the Hal Martin Saga keeps getting weirder – and we try on the full aluminum foil hat to explain how the whole thing could have been orchestrated by the GRU to turn Kaspersky Lab into a hero.

 

Ron Wyden and Motherboard combined to get mobile phone companies to stop selling location data to third parties. I wonder whether we’ll regret the result. Nobody else does.

 

Happy New Year from Big Brother: Vietnam takes a leaf from the EU and Chinese playbooks, threatening Facebook with fines for allowing prohibited posts and failing to localize data.

 

For comic relief, we cover the cybersecurity misadventures of “El Chapo.” Nick Weaver sums up the lesson: bespoke security is almost always bad security. Oh, and never use a phone provided by a paranoid boss.

 

We close with a quick review of how China has misused the Great Firewall to launch cyberattacks and what Silicon Valley (or the rest of us) can do in response.

 

Download the 246th Episode (mp3).

 

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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!

245. “Pay no attention to the guns, the flashbang, and the handcuffs. You’re free to go at any time.”

Nate Jones, David Kris, and I kick off 2019 with a roundup of the month of news since we took our Christmas break. First, we break down the utterly predictable but undismissable Silicon Valley claim that the administration’s new export control strategy will hurt the emerging AI industry.

Then we draw on our guests’ expertise in counterintelligence prosecutions to review the APT10 indictment – and the claim by Jack Goldsmith and Robert Williams that the strategy is a failure. We conclude that it isn’t a magic bullet, but that’s not quite the same as a failure. I tease my plan to propose two dozen more or less unthinkable retaliatory responses the US could deploy if and when it decides to get serious about deterring adversarial cyber operations.

We quickly cover three new hacks that once looked as though they might be government sponsored. Now we suspect that two were less strategic than that. The denial of service attack on newspaper printing may have been a profit-motivated ransomware attack, and the guy who doxxed the German political establishment may have been a lone hacker (hopefully not one weighing 400 pounds or we’ll never hear the end of it).

We quickly review the bidding on the US-China “quantum arms race,” which may be a bit less critical than the press suggests.

David and Nate also review the mixed bag of rulings on three motions to suppress in Hal Martin’s NSA theft case, which just gets weirder and weirder. David and I are in surprising agreement (along with the judge) that the FBI overreached in using handcuffs, a flashbang, and a SWAT team to conduct “noncustodial” questioning of Martin.

Today’s forecast: Windy with a high probability of litigation as Los Angeles sues The Weather Company for collecting and sharing location information in its apps. We suspect that, in claiming a lack of adequate disclosure about location collection, Los Angeles is relying on the ancient legal maxim, “Damned if you do and damned if you don’t.”

In other litigation news, Illinois’s biometric privacy law continues to encounter judicial skepticism. But the Illinois state courts, unburdened by federal standing law, may yet give teeth to this seriously dumb law as Rosenbach v. Six Flags rolls on in the Illinois Supreme Court.

In Quick Hits, I am examine the claim that a clever generative adversarial AI “cheated” at a mapping task. In fact, the lesson is both less exciting and more troubling: If you don’t understand how your AI is accomplishing the task you’ve set for it, you are in for some rude surprises.

Despite all the talk of stasis and crisis in Washington, Congress is still passing modestly useful legislation on cyber issues. Nate describes the SECURE Technology Act, which sets vulnerability disclosure policy and calls for bug bounties at DHS.

And, finally, I recommend a fascinating and deeply ambivalating (okay, that's not a word, but it should be) report on the many ways third-party sellers game Amazon’s Marketplace rules.

Download the 245th Episode (mp3).

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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!

 

243. Tech World Turned Upside Down Down Under

In the News Roundup, Nick Weaver and I offer very different assessments of Australia’s controversial encryption bill. Nick’s side of the argument is bolstered by special guest Denise Howell, the original legal podcaster, with 445 weekly episodes of This Week in Law to her credit.

Later in the program, I interview Rep. Jim Langevin (D-RI), who’s been a force for cybersecurity both on the Homeland Security Committee and on the Armed Services subcommittee that oversees Cyber Command and DARPA – a subcommittee that insiders expect him to be chairing in the next Congress.

Turning back to news, the Marriott hack, already one of the biggest in history, has developed a new and more interesting angle, Gus Hurwitz explains: It may have been a Chinese intelligence operation.

The Khashoggi killing has backfired on… Israeli and Italian hacking companies? Yes, indeed. Hacking Team and NSO are now immersed in legal hot water. And as a sign of how much the Middle East has changed, Nate Jones tells us that a Saudi dissident is now waging lawfare in the courts of Tel Aviv.

We also touch on what the detention in Canada of Huawei’s CFO means for US-China technology relations as well as on a new DOD report on the risks of EMP. Nick explains why he doesn’t worry about EMP but nonetheless loves the EMP alarmists.

Download the 243rd Episode (mp3).

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As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

242. Nobody Trolls Like the Russians

This episode features an interview with Michael Tiffany, the co-founder and president of White Ops and a deep student of how to curtail adtech fraud. Michael explains the adtech business, how fraudsters take advantage of its structure, and what a coalition of law enforcement and tech companies did to wreck one of the most successful fraud networks, known as 3ve. You can read more about the take down in the joint White Ops and Google report, “The Hunt for 3ve.”

In the news, David Kris covers the Supreme Court argument in the Apple antitrust standing case. At stake: whether Illinois Brick should apply outside a brick-and-mortar context. Our panel guesses that it won’t.

You knew this was coming: Megan Reiss covers US proposals to screen Chinese students for espionage risk before giving them visas. We think it’s a good idea, but really wish there were a way to score every student in China for how compliant they are with government wishes…oh, wait…

Nobody trolls like the Russians troll. David Kris covers a Russian trollsuit claiming that Facebook has unfairly censored Russian speech. Showing that they know their opponents’ weakness, the suit includes broad hints that censoring Russians is … racist. Maury Shenk covers the bookend – Russian government threats to sue Google for not complying with Russian censorship demands. And I suggest that Putin’s Data Protection law will be just that – a law to protect Putin’s data. Speaking of privacy law always protecting the powerful, Michael Tiffany offers several reasons why GDPR has been good for Google and Facebook ad market share and bad for European competitors. It’s the tragedy of EU mercantilism: always aiming at the United States and usually hitting itself in the foot.

Another day, another Iranian hacking/ransomware indictment. What’s different about this one, Megan tells us, is that it includes a Treasury order freezing the bitcoin the Iranians collected. That’s a potentially new and powerful law enforcement tool. With only a little cajoling, David Kris acknowledges that this is one Trump administration initiative that is both novel and a good idea.

Wrapping up, David Kris ponders the surprisingly straightforward Fourth Amendment issues raised when the police have to stop an autonomous-mode Tesla going 70 on the 101 with a passed out “driver.” And Megan and I ponder the difficulty posed for social media by the “yellow-vest” riots in Paris. Which model applies: Arab Spring or Russian interference? You know what the Macron administration will say. Buckle up, Big Tech. To paraphrase Peter Parker’s Uncle Ben, with great power comes utter confusion.

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241: “You’ll never know how evil a technology can be until the engineers deploying it fear for their jobs”

This episode’s should be titled "Baker’s Law of Evil Technology," as it explains Twitter’s dysfunctional woke-ness, Yahoo’s crappy security, and Uber’s deadly autonomous vehicles. Companies with lots of revenue can afford to offer benefits that they don’t much care about, including protection of minority voices, network security, and, um, not killing people. But as Uber’s travails show, all that gets tossed out the window when corporate survival is at stake. And here’s Baker’s Law in action: Airline algorithms that deliberately break up families sitting on the plane so they can charge to put the kids back in the same row.

I do a mini-interview of Adam Candeub, who has disclosed that the supposedly populist, supposedly Silicon-Valley-skeptical Trump Administration has proposed a massive and antidemocratic subsidy for conservative-censoring social platforms.  Worse, it's written into the virtually unamendable NAFTA 2.0. I rant (briefly) about it and pray that Congress kills the provision in the lame duck.

Merrick Garland may now be available. But, we ask Jamil Jaffer and Gus Hurwitz, is a Facebook Supreme Content Court a good idea?

Speaking of Facebook, even 98-lb weaklings seem to be kicking sand in the company’s face. I lay out the latest, incredible tale about how an app that finds all your friends’ bikini pics ended up spurring an international breach of US confidentiality orders – at the behest of the UK Parliament’s serjeant at arms. And when I say it's an incredible tale, I mean just that; the story told by the participants is extraordinarily hard to believe.

Jamil and Gus note that Commerce has begun identifying an enormous list of “emerging” technologies to be restricted for export. Is this a kind of defense-industrial policy? And will it work? The panel disagrees.

Paul Rosenzweig reports that Airbnb now has its own (woker-than-thou, naturally) foreign policy. He thinks it may violate a host of state anti-BDS laws.

Nick Weaver gives us the latest Bear Facts. Both Cozy and Fancy are back with a vengeance – and not much concern about avoiding attribution.

Download the 241st Episode (mp3).

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As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

Episode 240: If Paris calls, should we hang up?

 

Mieke Eoyang joins us for aninterview about Third Way’s “To Catch a Hacker” report. We agree on the importance of what I call “attribution and retribution” as a way to improve cybersecurity. But we disagree on some of the details. Mieke reveals that this report is the first in a series that will hopefully address my concerns about a lack of detail and innovation in the report’s policy prescriptions.

Russia’s lawyers are almost as good as its hackers, to judge by a “letter” from the Russian government in the DNC’s hacking case against it. Matthew Heiman and I conclude that the DNC is going to face an uphill fight trying to overcome Russia’s sovereign immunity arguments.

It’s not cybersecurity, but it is cyberhygiene: Never do a global “find and replace” on a sensitive court filing without making sure the “replace” part actually worked. That seems to be the failure that disclosed to the world that the US has filed criminal charges against Julian Assange under seal. Maury Shenk comments.

“As an additional service to Alexa users, we promise to protect the privacy of anyone who murders you.” Okay, maybe that’s an unfair summary of Amazon’s position on whether to release Echo recordings in a double murder case. It’s not surprising that Amazon wants a court order before handing over the recordings, or that it got one, or that it seems to have complied promptly.  The real news, I argue, would be if the company had handled the matter any other way.

Dr. Megan Reiss explains the significance, if any, of the Paris Call for Trust and Security in Cyberspace, where more than 50 states and companies – the United States not among them – have signed onto a mostly Mom-and-apple-pie agreement on cyber principles.

Soft power update: Chinese-style social credit scoring is coming to a Venezuela near you. Megan comments.

Sweet justice: California SWATter has pleaded guilty and now faces 20+ years in prison.

Looks like DHS finally made it, so I can stop talking about Congress approving the renaming of NPPD to be the Cybersecurity and Infrastructure Security Agency.

And for the lightning round, Matthew confirms that remotely wiping your iPhone constitutes destruction of evidence; I note that Phineas Finn has officially gotten away with the doxing of Hacking Team; and Megan comments on yet another diversion of Western traffic through Russia and China. This time, though, we may have to blame the Nigerians.

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As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

239: The Ministry of Silly Talk

Today’s interview is a deep (and long – about an hour) dive into new investment review regulations for the Committee on Foreign Investment in the United States (CFIUS). It’s excerpted from an ABA panel discussion on the topic, featuring: Tom Feddo, who currently oversees CFIUS; Aimen Mir, who used to oversee CFIUS; Sanchi Jayaram, who is in charge of the Justice Department’s CFIUS and Team Telecom work; David Fagan, a noted CFIUS practitioner; and me as moderator. It turns out the new CFIUS law may be the most innovative – and sweeping – piece of legislation on national security in years.   

In the news, it’s time for a Cyberlaw Podcast victory lap, as our bold election-eve prediction that foreign governments would not successfully hack the election seems to hold up well, despite laughable Internet Research Agency claims in a new meta-trolling propaganda campaign.

I note that challenges to FISA are increasing as it starts to play a role in more criminal cases. I ask David Kris whether Bob Mueller took unwise risks with intelligence equities when he charged a Russian company with criminal election trolling, since that company is now seeking discovery of intelligence intercepts.

Dr. Megan Reiss notes that China is making what might be called great strides in “gait recognition” software to supplement face recognition, taking what looks like a global lead in the technology. This reminds me that fifteen years ago, when DARPA was researching gait recognition for terrorist identification, the left/lib NGOs got Congress to kill funding by lampooning what they called “a Monty Python-esque ‘Ministry of Silly Walks.’” Not so funny now, is it guys? Especially in light of evidence that China is exporting its cyber surveillance tech to Africa.

How does China do it? According to the Australian Strategic Policy Institute, with plenty of help from the universities of the English-speaking world. Apparently the People’s Liberation Army has been sending its scientists to the West under light cover to study cutting edge defense tech.

Nate Jones and I examine the latest chapters in the now-encyclopedic tale of Silicon Valley v. Conservatives. We take a look at a Trump immigration campaign ad that Facebook and broadcast media (Fox included) refused to run. Gab is back, but just by the skin of its teeth. Meanwhile, the pitchforks and torches are being mustered for LinkedIn, which apparently hasn’t been sufficiently cowed by lefty censors. And Facebook’s effort to suppress Alex Jones’s InfoWars site is running into trouble.

Megan and I talk about the prospect that Iran is getting ready to launch cyberattacks on the US and Israel.

Nate covers the collapse of IronChat security as Dutch police managed to decrypt 258,000 messages in the app. Maybe spurred by my taunting, Edward Snowden denies that he ever endorsed the product, notwithstanding the claim on IronChat’s website. (My tweet on same: “Hey, @Snowden, IronChat sold secure phones at exorbitant prices because of your endorsement.”)

Pakistan says “almost all” its banks have been hacked.  Wouldn’t it be ironic if North Korea was buying nuclear and missile technology from Pakistan with money stolen from Pakistani banks?

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As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

 

238: Foreign governments will not hack this election

This episode puts our experts on the spot with an election-eve question: Will foreign governments attack US electoral rolls or vote-counting machinery in 2018? Remarkably, no one on our panel (Matthew Heiman, Nick Weaver, David Kris, and I) thinks they will. So if you want cybersecurity news, you can stop listening to election coverage and tune in to Episode 238 of The Cyberlaw Podcast.

Our interview features Steve Rice (Deputy CIO for DHS) and Max Everett (CIO for the Department of Energy) and was originally taped at a session of the Homeland Security Week conference.

In the news, Nick evaluates the report that China hijacked the Border Gateway Protocol; he thinks we need more data. David agrees with me that one way to get the data would be a Justice Department subpoena.

Matthew Heiman explains why SCOTUS is skeptical of Google’s cy pres settlement that treated 129 million class members like bystanders at someone else’s party – and why that skepticism may not appear in US Reports any time soon.

Nick and David lay out the painful story of how failures in CIA communications with their assets may have severely compromised HUMINT operations in Iran and China.

Matthew and I talk about the string of right-wing killers in the past few weeks and the tech implications, including the defenestration of Gab and a lot of throat-clearing about amending Section 230 of the Communications Decency Act.

Matthew also explains, then casts doubt on, a Florida Appeals Court decision that rejects the “foregone conclusion” doctrine for compelled passcode disclosure.

After all the Internet-enabled vibrator stories we’ve covered on the podcast, I think we’re obliged by gender equity to cover this effort to use artificial intelligence to improve male sex toys. For those who may face confirmation before the Senate Judiciary Committee any time in the next decade, Nick explains that Markov chain techniques have nothing to do with the Devil’s Triangle.

More hostilities in the US-China Cool War: DOJ has indicted a Chinese-state owned company as well as UMC and three individuals for stealing trade secrets from US companies; and in a coordinated move, the Department of Commerce has placed limits on US businesses interacting with the Chinese company. I wonder whether the Cool War between China and the US is increasingly forcing big foreign tech companies to choose between the two as they develop new technology.

Download the 238th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Pocket Casts, Google Play, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

237. I’d Like to Teach the World to Troll, in Perfect Harmony!

The theme of this week’s podcast seems to be the remarkable reach of American soft power. Really. We elect Donald Trump, and suddenly everybody’s trolling.

The Justice Department criminally charges a Russian troll factory’s accountant, and before David Kris can finish explaining it, she’s on YouTube, trolling the prosecutors with a housewife schtick.

She’s not alone. Faced with the news that President Trump is using a commercial iPhone for many of his calls – and, Nate Jones points out, getting wiretapped by China, Russia, and others as a result – China has a suggestion that scores at the top of the POTUS Troll Scale.

Tim Cook, meanwhile, goes to Europe to troll Android – and me – with a speech that pushes all my buttons: Europhilia, Apple sanctimony in pursuit of profit, and blind enthusiasm for privacy regulation. But at the end of the day, it's just another Apple-bites-Android story. 

Last in the troll parade comes what can only be described as the understated trolling deployed by the British government when it was asked by the Belgians to investigate whether a Belgian ISP might have been hacked by GCHQ. 

This week’s interview is with Dr. Dipayan Ghosh, Pozen Fellow at Harvard’s Shorenstein Center and co-author of a new report, “Digital Deceit II: A Policy Agenda to Fight Disinformation on the Internet.” It's an interesting mix of good insights and warmed-over Obama-era nostalgia (Carly Rae Jepsen makes a brief appearance). Dipayan and I tangle on privacy but struggle toward common ground on how to limit the power of the Big Platforms. He’s open-minded and flexible about the details of his proposal, so for fans of civil policy debate who are worried about where the platforms’ dominance and ad revenue are taking us, this episode is a keeper.

More news: Why would a Russian technical institute design malware used in an effort to sabotage a major petrochemical plant in Saudi Arabia? Nate Jones lays out the story. Originally suspected of being an Iranian operation, the attack may have originated in Iran, but FireEye persuasively links the underlying (and flawed) malware to Moscow. One possibility is that it’s a Russian false flag job, minus the embarrassing GRU operatives and their Uber receipts. My guess, though, is that the Russian institute is just amortizing malware development costs by selling off exploits developed for the GRU. If so, this may turn out to be another slow motion disaster for the thugs in the Aquarium.

In other news, Yahoo settled a class action over the enormous breach affecting 200 million people and three billion accounts. The price of that settlement? After the lawyers have been paid, the settlement works out to about 25 cents per victim. Seems pretty cheap to me.

For a brief moment, reality has descended on the left coast. It looks like California isn’t eager to get a judicial ruling on its campaign to nullify federal net neutrality law.

In the UK, Facebook is fined the maximum under pre-GDPR law, for what the privacy agency calls a failure to protect personal data from Cambridge Analytica – or, more likely, for the unspeakable crime of not having prevented the election of Donald Trump. And now that GDPR is in effect, the bien pensants of Europe have served notice; failure to prevent the President’s re-election will cost Silicon Valley billions.

Finally, what goes around comes around for the Uber “bounty” hackers. David and I think that this story pretty much answers the question whether they were just confused bounty hunters or extortionists with a clever line of patter.

Download the 237th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Pocket Casts, Google Play, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

236. Twitterlaw and the Khashoggi killing

In this week's interview we ask whether the midterm elections are likely to suffer as much foreign hacking and interference as we saw in 2016. The answer, from Christopher Krebs, Under Secretary for National Protection and Programs Directorate (soon to be the Cybersecurity and Infrastructure Security Agency), is surprisingly comforting, though hardly guaranteed. Briefly, it’s beginning to look as though the Russians (and maybe the Iranians) are holding their fire for the main event in 2020.

In the News Roundup, Maury Shenk highlights the role of Twitter, trolls, and Saudi royals in the Khashoggi killing. He also explains the apparently ridiculous result in the EU Android competition matter. It may be a case of Google giving the EU what it asked for – good and hard.

Terry Albury certainly got it good and hard from a federal judge. He was sentenced to four years in prison for leaking classified documents to The Intercept. Jamil Jaffer explains why Albury’s claim of being a whistleblower didn’t win him much relief. I suggest that maybe the only people willing to read Intercept articles to the end are federal agents trying to find clues to the leakers’ identities; whatever they’re doing, it’s working.

Maury and I marvel over the flood of venture capital money into China – and a potential ebb tide for Chinese money in Silicon Valley.

Jamil explains the latest SEC report flagging the cost of email fraud; nine firms lost $100 million to cyberfraud.  And to add insult to injury, the SEC hints broadly that future victims may be tagged for violating SEC accounting standards, which should be sufficient to prevent such fraud.

I point to the ABA’s recent ethics opinion mandating breach disclosure to clients – and quite a bit more. Maury instructs me on the question of whether putting names on doorbells violates GDPR. Vienna says yes; Germany, no. Maury is sure the Germans have this right.

Finally, I update listeners on the Equifax data breach engineer who figured out that his company must have been breached and traded on his suspicion. In an act of relative mercy for the clueless engineer, he was fined and sentenced to eight months of home confinement.

Download the 236th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Pocket Casts, Google Play, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!