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367. President Biden’s European Cybertour

We could not avoid President Biden’s trip to Europe this week. He made news (and perhaps a little progress) on cybersecurity at every stop. Nick Weaver and I dig into the President’s consultations with Vladimir Putin, which featured veiled threats and a modest agreement on some sort of continuing consultations on protecting critical infrastructure.  Jordan Schneider sums up the G7 and NATO statements aligning with U.S. criticisms of China. And our newest contributor, Michael Ellis, critiques the EU-U.S. consultations on technology, which featured a complete lack of U.S. resolve in seeking an outcome on transatlantic data flows that would preserve US intelligence capabilities.

Michael also recaps the latest fallout from the Colonial Pipeline ransomware shutdown – new regulatory initiatives from TSA and a lot of bipartisan regulatory proposals in Congress. He's not as supportive as I am. In that context, I explain the very unusual (or, maybe, all too usual) meaning given to “bipartisanship” on Capitol Hill.

Nick is not exactly mourning the multiple hits now being suffered by ransomware insurers, from unexpected losses to the ultimate in concentrated loss – gangs that hack the insurer first and then systematically extort all its ransomware insurance customers.

Jordan sums up China’s new data security law. He suggests that, despite Western reporting, which emphasizes a "government control of data" narrative, the motive for the law may be closer to the motive for data protection laws in the West – consumer suspicion over how private data is being used. I’m less convinced, but we have a good discussion of how bureaucratic imperatives and bureaucratic competition work in the Peoples Republic of China.

Michael and Nick dig into the White Paper on FISA applications published by Adam Klein, outgoing chairman of the Privacy and Civil Liberties Oversight Board. Notably, to my mind, the White Paper doesn't support the Justice Inspector General’s suggestion that the FISA process is riddled with error. The paper does call urgently for renewal of the expired FISA section 215 authority, and it suggests several constructive changes to the FISA paperwork flow.

In quick hits, Michael brings us up to date on the FCC’s contribution to U.S. decoupling from China: a unanimous vote to exclude Chinese companies from the U.S. telecom infrastructure and a Fifth Circuit decision upholding the FCC's exclusion of Chinese companies from federal subsidies for U.S. telecom carriers.  Finally, Jordan reminds us just how much progress China has made in exploring space.

And More!

Download the 367th 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.

366. Are Stealth Quotas the Cure for AI Bias?

This week the Business Software Alliance issued a new report on AI bias. Jane Bambauer and I come to much the same conclusion: It is careful, well-written, and a policy catastrophe in the making. The main problem? It tries to turn one of the most divisive issues in American life into a problem to be solved by technology. Apparently because that has worked so well in areas like content suppression. In fact, I argue, the report will be seen by many, especially in the center and on the right, as an effort to impose racial and gender quotas by stealth in a host of contexts that have never been touched by such policies before.

Less controversial, but only a little, is the U.S. government's attempt to make government data available for training more AI algorithms. Jane more or less persuades me that this effort too will end in tears -- or stasis.

In cheerier news, the good guys got a couple of surprising wins this week. While encryption and bitcoin have posed a lot of problems for law enforcement in recent years, the FBI has responded with imagination and elan, at least if we can judge by two of the week's stories. First, Nick Weaver takes us through the laugh-out-loud facts behind a government-run encrypted phone app for criminals complete with influencers, invitation-only membership, and nosebleed pricing to cement the phone's exclusive status. Jane Bambauer unpacks some of the surprisingly complicated legal questions raised by the FBI's creativity.

Paul Rosenzweig lays out the much more obscure facts underlying the FBI's recovery of much of the ransom paid by Colonial Pipeline. There's no doubt that the government surprised everyone by coming up with the private key controlling the bitcoin account. We'd like to celebrate the ingenuity behind the accomplishment, but the FBI isn't saying how it gained the access, probably because it hopes to do the same thing again and can't if it blows the secret. 

The Biden administration is again taking a shaky and impromptu Trump policy and giving it a sober interagency foundation.  This time it's the TikTok and WeChat bans. These were rescinded last week. But a new process has been put in place that could restore and even expand those bans in a matter of months. Paul and I disagree about whether the Biden administration will end up applying the Trump policy to TikTok or WeChat or to a much larger group of Chinese apps.

For comic relief, Nick regales us with Brian Krebs's story of the FSB's weird and counterproductive attempt to secure communications to the FSB's web site.

Jane and I review the latest paper by Bruce Schneier (and Henry Farrell) on how to address the impact of technology on American democracy. We are not persuaded by its suggestion that our partisan divide can best be healed with understanding, civility, and aggressive prosecutions of Republicans.

Finally, everyone confesses to some confusion about the claim that the Trump Justice Department breached norms in pursuing phone and internet records of prominent Democratic congressmen and at least one Trump administration official. Best bet: this flap will turn out to be less interesting the more we learn. But I renew my appeal, this time aimed at outraged Democrats, for more statutory guardrails and safeguards against partisan misuse of national security authorities. Because that's what we'll need if we want to keep those authorities on the books.  

And More!

Download the 366th Episode (mp3)

If you are reading this and wondering why you haven't received episode 366 on your iPhone, it's because Apple's podcast subscription service has melted down. It didn't deliver episode 365 either. Really, it's time to subscribe to The Cyberlaw Podcast using a reliable method, which iTunes is not.  Try  Spotify, Pocket Casts, or one of a dozen other services that work.

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.

365. Transatlantic Drift

The Biden administration is dribbling away one of the United States' most important counterterrorism intelligence programs. At least that's my conclusion from this episode's depressing review of the administration's halting and delusion-filled approach to the transatlantic data crisis. Every day, Silicon Valley companies whose data stores in the US have been a goldmine for counterterrorism are feeling legal pressure to move that data to Europe. Those companies care little whether the US gets good intelligence from its section 702 requests, at least compared to their fear of massive fines and liability in Europe. The EU is standing firm because it thinks time is on its side, and it's ignoring Jamil Jaffer's heartfelt plea to be a better ally in the face of Russian and Chinese pressure.

So, unless the administration creates a countervailing incentive, the other actors will simply present Washington with a fait accompli. The Biden administration, like the Trump administration before it, seems unable to grasp the need for action. When Trump was in charge, we could call him incompetent. When we wake up to what we've lost under Biden, that's what we'll call him, too.

For companies struggling with their role in this global drama, Charles Helleputte has moderately good news. The European Commission, contrary to the dogmatic approach of the data protection agencies, has opened a door for transfers using the new standard corporate clauses. If your data has not been requested by the US under 702 or similar authorities and you can offer good reason to think they won't in future, you can avoid the ban.

In other news, Jamil and I cross swords on whether the Colonial pipeline hack should have ended TSA's light-touch oversight of pipeline cybersecurity.

And Nate Jones and I dig deep into the state laws regulating police access to DNA ancestry databases. After some fireworks, we come close to agreement that some state law on database access is inevitable and workable, but the Maryland law is so hostile to solving brutal crimes with DNA searches that it is hard to distinguish from a ban.

Jamil explains the Biden administration's decision to provide a new foundation for the Trump ban on investment in Chinese military companies. Treasury will take the program away from DOD, which had handled its responsibilities with the delicacy of Edward Scissorhands.

Nate limbers up the DeHype Machine to put in perspective DOJ's claim to be giving ransomware hacks the same priority as terrorism. Jamil takes on autonomous drones and pours cold water on the notion that DOD will be procuring some of its drones from China.

In a moment of weakness I fail to attack or even mock the UN GGE's latest report on norms for cyberconflict, which look pretty anodyne.

And in a series of quick hits:

• Jamil reviews Facebook's latest antitrust problems in the EU and UK
• I remind listeners of the "throuple" Congresswoman, whose failed pivot from abuser of power to victim of revenge porn has just cost her over $100,00  
• In case you haven't heard, Facebook might let Trump come back in January 2023, and his blog page has shut down for good.
• The European Commission has proposed a trusted and secure Digital Identity for all Europeans but Charles thinks there's less there than meets the eye.
• And Nigeria has suspended Twitter after the platform shut down the President's account for obliquely threatening military action against secessionists.
• And More!

Download the 365th 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.

364. Does Good Ransomware Policy Have To Be Boring?

We don't get far into the interview of the authors of a widely publicized Ransomware Task Force report, before I object that most of its recommendations are boring procedural steps that don't directly address the ransomware scourge. That prompts a vigorous dialogue with Philip Reiner, Executive Director of the Institute for Security and Technology (IST), the report's sponsoring organization, with Megan Stifel, of the Global Cyber Alliance, and with Chris Painter, of The Global Forum on Cyber Expertise Foundation. And in the end we in fact find several new and not at all boring recommendations among the nearly 50 put forward in the report.

In the news roundup, Dmitri Alperovitch has an answer to my question, "Is Putin finally getting a handle on U.S. social media?" Not just Putin, he argues, but every other large authoritarian government is finding ways to bring Google, Twitter, and Facebook to heel. In Russia's case, the method is first a token fine, then a gradual throttling of service delivery that makes domestic competitors look better in comparison to the Silicon Valley brand. Silicon Valley may have invented the shadow ban, but Putin is perfecting it.

Mark MacCarthy handicaps the Epic v. Apple lawsuit. The judge is clearly determined to give both sides reason to fear that the case won't go well for them. Our best guess is that Epic might get some form of relief but not the outcome they hoped for.

Dmitri and I marvel at the speed and consensus in Washington around imposing new regulations after the Colonial Pipeline ransomware event. It's likely that the attack will spur mandatory reporting of cyber incidents (and without the pain-easing award of liability protection) as well as aggressive security regulation from the agency with jurisdiction – TSA.  I offer a cynical Washington perspective on why TSA has acted so decisively.  

Mark and I dig into the signing and an immediate lawsuit against Florida's social media regulation attacking common content moderation issues. Florida will face an uphill fight, but neither of us is persuaded by the tech press's claim that the law will be "laughed out of court."  There is a serious case to be made for almost everything in the law, with the exception of the preposterous (and probably severable) exemption for owners of Florida theme parks.

Dmitri revs up the DeHyping Machine for reports that the Russians responded to Biden administration sanctions by delivering another cyberpunch in the form of hijacked USAID emails. It turns out that the attack was garden variety cyberespionage, that the compromise didn't involve access to USAID networks, that it was launched before the latest round of Russia sanctions, and that it wasn't very effective as cyberespionage.

Jordan Schneider explains the surprisingly successful impact of U.S. government policy on China's cellular-equipment industry, and the appeal of Open RAN as a way of end-running the current incumbents.

U.S. industrial policy could be transformed by the shape-shifting Endless Frontier Act. Jordan and Dmitri explain how. I ask whether we're seeing a deep convergence on industrial policy on both sides of the Pacific, now that President XI has given a speech on tech policy that could have been delivered by half a dozen Republican or Democratic senators.  

Finally, Dmitri reviews the bidding on cryptocurrency regulation both at the White House White House and in London.

Finally, in short hits, we cover:

• The European Court of Human Rights decision squeezing but not quite killing GCHQ's mass data interception programs and its cooperation with the U.S. I offer a possible explanation for the court's caution.
• A Justice Department court filing strongly suggesting that the Biden administration will not be abandoning a Trump administration rule that requires visa applicants to register their social media handles with the U.S. government.  I speculate on why.
• A WhatsApp decision not to threaten its users to get them to accept the company's new privacy terms. Instead, I argue, WhatsApp will annoy them into submission.
• And, finally, a festival of EU competition law attacks on Silicon Valley, from Brussels to Germany and France.

And More!

Download the 364th 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.

363. Dorian Gray's portrait is apparently stored behind the Great Firewall

Paul Rosenzweig kicks off the news roundup by laying out the New York Times's brutal story on the many compromises Tim Cook's Apple has made with an increasingly oppressive Chinese government. There is no way to square Apple's grandstanding opposition to US national security measures with its quiet surrender to much more demanding Chinese measures. I suggest that the disparity can only be explained if Tim Cook is in fact Dorian Gray and storing his portrait behind the Great Firewall. 

Ransomware hasn't stopped making news, Paul tells us, with Irish hospitals the latest to take the fall. Nate Jones assesses the likelihood (low) that governments will effectively ban  payment of ransomware. And Paul points out that, while cryptocurrency may be facilitating crime, at least it's also warming the planet, as an entire American power plant is taken out of mothballs to power cryptocurrency mining operations.

Governments are increasingly cracking down on cryptocurrency, and Paul gives us one week of news in new regulation: China has reiterated its opposition to unregulated access to crypto. The IRS is threatening action against unreported transactions in cryptocurrency. And Hong Kong plans to restrict crypto exchanges to professional investors. 

Another 60+ pages from the FISA court approving the executive branch's section 702 procedures. With Nate on the job, you don't need to read it all, or rely on the ideologically motivated criticism of privacy groups. Nate tells us that in approving the 702 procedures the FISA court has much less leeway than a court usually does in reviewing federal agency action (with a hat tip to a good analysis by NSA alum George Croner).   

Jamil Jaffer bemoans the enthusiasm sweeping Europe for sticking it to US (but not Chinese) tech companies under a variety of competition law theories. Google has been fined just over €100 million by Italy's antitrust watchdog for abuse of a dominant market position in Android auto apps. And Germany is readying big guns for an attack on Amazon's market dominance. I point out that American policyholders seem to share this enthusiasm, at least judging from the questions the presiding judge in Epic v. Apple posed this week to Tim Cook.

Nate and I explore Apple's apparent decision to let Parler back into the app store. (And, given the enthusiasm for regulating such dual-facing markets like the app store on antitrust grounds, that decision would be wise.) But Apple is still demanding that Parler block speech that Parler doesn't think it should be blocking.

We wrap up with a few quick hits:

• Looking for a cheap way to defeat ransomware?  Brian Krebs has a "might not work but what do you have to lose?" idea: install a Russian keyboard layout on your computer (although with my luck, the ransomware will translate all my files into Russian).
• Andy Greenberg has a good retrospective on the OG supply chain hack: the Chinese theft of RSA's core security seeds.
• Dangling the other shoe: The UK's head of MI5 isn't mincing words. Ken McCallum is accusing Facebook of giving a 'free pass' to terrorists by adopting end-to-end crypto for its messaging app. Sooner or later, this is going to end in tears.
• And we all agree that the Biden administration was lucky to persuade Matt Olsen to leave Uber to become head of DOJ's National Security Division.

And More!

Download the 363rd 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.

362. The Biden Cybersecurity Executive Order – CISA as CISO

Our interview is with Brandon Wales, acting head of the Department of Homeland Security's (DHS) Cybersecurity and Infrastructure Security Agency (CISA) and Jen Daskal, Deputy General Counsel for Cyber and Technology Law at DHS. We dig deep into the new Executive Order on cybersecurity.  The EO is focused largely on how the federal civilian government protects its networks, and it is just short of revolutionary in overcoming longstanding turf fights, almost all of which are resolved in favor of CISA – to the point where it seems clear that CISA is on its way to being the federal civilian agencies' CISO, or Chief Information Security Office.

This is clearly CISA's moment. It is getting new authorities from the President and new money from Congress. Whether it can meet all the expectations that these things bring is the question.

We also touch on parts of the EO that will affect the private sector, from its determined push for breach and other incident reporting in federal contracts to the formation of a Cyber Safety Review Board to investigate private sector incidents. I predict that the Board will need (and will get) subpoena power soon. Neither Brandon nor Jen takes the other side of that bet.

In the news, we get an update on the Colonial Pipeline ransomware attack from Nick Weaver and first-time news panelist Betsy Cooper. Colonial has paid $5 million in ransom for a bad decryption tool and restarted operations anyway. Since it's likely to end up as the second test case for the Cyber Security Review Board, though, Colonial's biggest regret may be waiting five days to start sharing information with CISA.

Maury Shenk explains the 200-page Irish High Court decision allowing the Irish data protection regulator to begin an inquiry that could cut off Facebook's data exports to the United States. Facebook would love to forestall that day until EU-US talks on a new data export deal are done, but the Biden administration isn't exactly making it a priority to bail out either Facebook or the US intelligence community, which has as much at stake in transatlantic data flows as the companies.

One of the puzzles of recent weeks has been a persistent but vague story that DHS wants more authority to gather information from public postings on social media. Nick, Betsy, and I try to make sense of the story, and we're not helped by the fact that much of the media and politicians have switched from condemning such intelligence operations to demanding them, and vice versa, in the weeks since the Trump administration ended.

Nick can't resist a story that leaves both bitcoin and Tor looking bad, so of course we cover the boom in Tor exit nodes configured to steal the cryptocurrency of Tor users.

Betsy covers the unanimous view of chip making and chip consuming companies that the federal government should subsidize chip making in the US. Industrial policy is making a comeback, we note, but Betsy reminds us there's a reason it went away: *cough*Solyndra*cough*

Betsy seizes on the latest WhatsApp tactic to lament the willingness of data-driven tech companies to annoy us into submission.

Nick and I cross swords over Apple's firing of Antonio García Martínez, author of Chaos Monkeys, in my view one of the funniest and most insightful Silicon Valley books of the last decade. Part of its appeal is Garcia Martinez's relentless burning of every bridge in his past business and personal life.  How, you keep asking, can he recover from telling all those truths about Morgan Stanley, Facebook, Y Combinator, and the adtech business? Turns out, he can't. But it wasn't any of those supposedly potent institutions that nailed him. Instead, it was his claim that the women of Silicon Valley are mostly "soft and weak, cosseted and naïve" and possessed of a "self-regarding entitlement feminism."

That's all it took. Apple employees demanded that they be protected from anyone with those views, and he was summarily fired.  Way to go, Apple employees!  Nothing rebuts a stereotype of female soft weakness and entitlement like demanding to be protected from someone who doesn't share your feminist entitlement. (Nick, in contrast, thinks Garcia Martinez is a walking sexual harassment judgment. He didn't like the book either.) I actually think the more interesting question is whether hiring Garcia Martinez shows just how determined Apple is to replace Facebook as Google's main competition in the business of collecting customer data to sell ads.

In quick hits, I revisit the Bezos camp's claim that a Saudi prince hacked Jeff Bezos's phone and turned his unexpurgated selfies over to the National Enquirer in order to suppress Washington Post publicity over the killing of Jamal Khashoggi. That was all BS, it turns out, apparently designed to turn Bezos from an ordinary tawdry adulterer into a press freedom crusader.

And Nick draws our attention to Counterfit, a promising Microsoft tool for testing AI algorithms to find security flaws.

And More!

Download the 362nd 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.

361. Computers will soon be hacking people. If they aren't already ...

Bruce Schneier joins us to talk about AI hacking in all its forms. He’s particularly interested in ways AI will hack humans, essentially preying on the rough rules of thumb programmed into our wetware – that big-eyed, big-headed little beings are cute and need to have their demands met or that intimate confidences should be reciprocated. AI may not even know what it’s doing, since machines are famous for doing what works unless there’s a rule against it.  Bruce is particularly interested in law-hacking – finding and exploiting unintended consequences buried in the rules in the U.S. Code. If any part of that code will lend itself to AI hacking, Bruce thinks, it’s the tax code (insert your favorite tax lawyer joke here). It’s a bracing view of a possible near-term future.

In the news, Nick Weaver and I dig into the Colonial Pipeline ransomware attack and what it could mean for more aggressive cybersecurity measures than the Biden administration was contemplating just last week as it was pulling together an executive order that focused heavily on regulating government contractors.

Nate Jones and Nick examine the stalking flap that is casting a cloud over Apple’s introduction of AirTags.

Michael Weiner takes us on a quick tour of all the pending U.S. government antitrust lawsuits and investigations against Big Tech. What’s striking to me is how much difference there is in the stakes (and perhaps the prospects for success) depending on the company in the dock. Facebook faces a serious challenge but has a lot of defenses. Amazon and Apple are being attacked on profitable but essentially peripheral business lines. And Google is staring at existential threats aimed squarely at its core business.

Nate and I mull over the Russian proposal for a UN cybercrime proposal. It's bound to be a bad idea. The good news is that stopping progress in the UN is usually even easier than stopping progress in Washington.

Nate and I also puzzle over ambiguous leaks about what DHS wants to do with private firms as it tries to monitor extremist chatter online. My guess: This is mostly about wanting the benefit of anonymity or a fake persona while monitoring public speech.

Next, Michael takes us into the battle between Apple and Fortnite over whether Fortnite can access to the app store without paying the 30% cut demanded by Apple. Michael thinks we’ve mostly seen the equivalent of trash talk at the weigh-in so far, and the real heavyweight fight will begin with the economists’ testimony this week.

Nick indulges a little trash talk of his own about the claim that Apple’s app review process provides a serious benefit to users, citing among other things the litigation-driven disclosure that Apple never sent emails to users of the 125 million buggered apps it discovered a few years back.

Nick and I try to make sense of stories that federal prosecutors in 2020 sought phone records for three Washington Post journalists -- as part of an investigation into the publication of classified information that occurred in 2017. 

I touch quickly on the Facebook Oversight Board’s review of the suspension of President Trump’s account.  To my mind, a telling (and discrediting) portion of the opinion reveals that some board members thought that international human rights law required more limits on Trump’s speech – and they chose to base that on the silly notion that it's racist to call the coronavirus a Chinese virus. Put aside all the "British" and "South African" and "Indian" variants that no one is apologizing for, anyone who has read Nicholas Wade’s careful article knows that there’s lots of evidence the virus leaked from the Wuhan virology lab. Which means that if any virus in the last hundred years deserves to be named for its point of origin, this is it. Nick disagrees.

Nate previews an ambitious task force plan on tackling ransomware. We’ll be having the authors on the podcast soon to dig deeper into its nearly 50 recommendations.

Signal is emerging a Corporate Troll of the Year, if not the decade. Nick explains how, fresh from trolling Cellebrite, Signal took on Facebook by creating a bevy of personalized Instagram ads that take personalization to the Next Level.

Years after the fact, the New York Attorney General has caught up with the three firms that generated fake comments supporting the FCC’s net neutrality rollback. They’ll be paying fines. But I can’t help wondering why anyone ever though it was useful to evaluate proposed rules by counting the number of postcards and emails that shout “yes” or “no” but offer no analysis.

Download the 361st 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.

360. The robot apocalypse -- and you!

Our interview is with Kevin Roose, author of Futureproof: 9 Rules for Humans in the Age of Automation. Kevin debunks most of the comforting stories we use to anaesthetize ourselves to the danger that artificial intelligence and digitization pose to our jobs. Luckily, he also offers some practical and very personal ideas for how to avoid being caught in the oncoming robot apocalypse.

 In the news roundup, Dmitri Alperovich and I take a few moments to honor Dan Kaminsky, an extraordinary internet security and even more extraordinarily decent man. He died too young, at 42, as Nicole Perlroth demonstrates in one of her career-best articles. 

 Maury Shenk and Mark MacCarthy lay out the EU’s plan to charge Apple with anti-competitive behaviour in running its app store. Under regulation-friendly EU competition law, rather than the more austere US version, it sure looks as though Apple is going to have trouble escaping unscathed. 

 Mark and I duke it out over Gov. DeSantis’s Florida bill on content moderation reform. We agree that it will be challenged as a violation of the First Amendment and as preempted by federal section 230. Mark thinks it will fail that test. I don’t, especially if the challenge ends up in the Supreme Court, where Justice Thomas at least has already put out the “Welcome” mat.  

 Dmitri and I puzzle over the statement by top White House cyber official Anne Neuberger that the US reprisals against Russia are so far not enough to deter further cyberattacks.  We decide it’s a “Kinsley gaffe” – where a top official inadvertently utters an inconvenient truth.

 This Week in Information Operations: Maury explains that China may be hyping America’s racial tensions not as a tactic to divide us but simply because it’s an irresistible comeback to US criticisms or Chinese treatment of ethnic minorities. And Dmitri explains why we shouldn’t be surprised at Russia’s integrated use of hacking and propaganda. The real question is why the US has been so bad at the same work.

 In shorter pieces:

•  Mark covers the slooow rollout of an EU law forcing one-hour takedowns of terrorist content.
•  Dmitri tells us about the evolution of ransomware into full service doxtortion, as sensitive files of the D.C. Police Department are leaked online 
•  Dmitri also notes the inevitability of more mobile phone adtech tracking scandals, such as the compromise of US military operations  
•  Maury and I discuss the extent to which China’s internet giants find themselves competing, not for consumers, but for government favor, as China uses antitrust law to cement its control of the tech sector 
•  Finally, Dmitri and I unpack the latest delay in DOD’s effort to achieve cybersecurity maturity through regulatory-style compliance, an effort Dmitri believes is doomed 

And more!

Download the 360th 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.

 

359. The cybersecurity benefits of desk drawers

Brian Egan hosts this episode of the podcast, as Stewart Baker is hiking the wilds of New Hampshire with family. Nick Weaver joins the podcast to discuss the week in ransomware, as DOJ gets serious, and the gangs do too. Justice has a new ransomware task force,  and the gangs have asked  for $50 million not to disclose Apple product plans compromised during a breach of Quanta.

Paul Hughes gives us details on the EU's proposal for regulating the deployment of artificial intelligence and facial recognition technology. Brian compares the EU work to the FTC's own principles for achieving truth and fairness while using AI.

Nick finds a lot to like in Sen. Wyden's 'Fourth Amendment Is Not For Sale Act,' which would ban Clearview and government purchases of location data without a warrant.

Brian summarizes the Biden administration's series of cyber initiatives for critical infrastructure sectors. Nick can't resist the high-grade trolling on display in the squabble between Signal and Cellebrite. Brian evaluates the administration's sanctions on Russia for, among other things, the SolarWinds hack.

And Nick covers the ultimate consumer supply chain attack ultimate consumer supply chain attack -- on password managers. Nick's advice: "Amateurs keep their passwords in their drawers. Pros keep their passwords in their wallets."

Download the 359th 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.

358. Congress's 2021 cybersecurity agenda

Our interview is with Mark Montgomery and John Costello, both staff to the Cyberspace Solarium Commission.  The Commission, which issued its main report more than a year ago, is swinging through the pitch, following up with new white papers, draft legislative language, and enthusiastic advocacy for its legislative recommendations, many of which were adopted last year. That makes it the most successful of the many cybersecurity commissions that have come and gone in Washington. And it's not done yet. Mark and John review several of the most important legislative proposals the Commission will be pursuing this year. I don't agree with all of them, but they are all serious ideas and it's a good bet that a dozen or more could be adopted in this Congress.

In the news roundup, David Kris and I cover the FBI's use of a single search warrant to remove a large number of web shells from computers infected by China's irresponsible use of its access to Microsoft Exchange. Deploying a search warrant (or, more accurately, a seizure warrant)requires a far-reaching interpretation of federal criminal Rule 41. But despite valiant efforts, David is unable to disagree with my earlier expressed view that the tactic is lawful.

Brian Egan outlines what's new in the Biden administration's sanctions on Russia for its SolarWinds exploits. The short version: While some of the sanctions break new ground, as with the restrictions on Russian bonds, they do so cautiously.

Paul Rosenzweig, back from Costa Rica, unpacks a hacking story that has everything – terrorism, the FBI, Apple, private sector hacking, and litigation. Short version: we now know the private firm that saved Apple from being ordered to hack its own phone. The hacking was done instead by an Australian firm named Azimuth that apparently only works for democratic governments but that is nonetheless caught up in Apple's bully-the-cybersecurity-researchers litigation campaign.

Gus Hurwitz talks to us about the seamy side of content moderation (or at least one seamy side) – the fight against "coordinated inauthentic behaviour."  

In quicker takes, Paul gives us a master class in how to read the intel community's Annual Threat Assessment.  David highlights what may be the next Chinese  telecom manufacturing target, at least for the GOP. I highlight the groundbreaking financial industry breach notification rule that has now finished the comment period and is moving toward adoption. And Gus summarizes the state of Silicon Valley antitrust legislation:  Everyone has a bill, so no one is likely to get a bill.

Download the 358th 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.

What I learned when Linkedin suppressed my post

I've been warning for years about how social media suppresses views that aren't popular in Silicon Valley. Until recently, though, I hadn't found myself on the receiving end of its power.  Now I have. So this take on Silicon Valley speech suppression is more personal than usual.

Let's start with the Hunter Biden laptop story.

I know. You're probably already scoffing. Certainly my mostly liberal (and even some conservative) friends are convinced the whole thing is bogus, of interest only to denizens of the Trump fever swamp.  They remember that the laptop was never verified, that it was widely suspected of being a product of Russian hacking and disinformation, and even if true, that it was simply a wallow in Hunter Biden's many personal failings that told us nothing about his father's fitness for office.

Most of those widespread views are wrong. They are contradicted by a long and detailed story in the UK's Daily Mail. The "Russian disinformation" claim never stood up to much scrutiny, consisting as it did mainly of assertions that faking a laptop was the kind of thing the Russians would do. Now, however, the Daily Mail has validated the laptop and its contents, both obtaining a former FBI agent's forensic judgment and conducting a detailed examination of the laptop's contents. The sheer volume of material makes it highly unlikely that the laptop itself was a fabrication. There are 103,000 text messages, including many intimate (and heart-breaking) father-son exchanges, 154,00 emails, and over 2,000 photos, including numerous nude or sexual pictures of Biden and others. (That leaves open the possibility that someone, perhaps even Russian intelligence, might have added a few fake documents to the real ones – a possibility that would seem to call for detailed examination of the laptop's contents, something no mainstream media outlet has deigned to conduct.)

As for its relevance to President Biden's fitness, earlier reporting disclosed correspondence suggesting that Hunter's unsavory businesses exploited or even benefited his father. And the Daily Mail claims that Hunter was getting some form of Secret Service protection long after the agency claimed to have ended its work for the Biden family. Maybe these stories will fall apart on examination, but there can be little doubt that they deserve investigation. And little doubt that such an investigation could have influenced the 2020 election campaign, when the laptop first surfaced.

What the laptop story got was the opposite of examination. Relying on the unsupported "Russian hacking" conspiracy theory, Twitter blocked the New York Post article. Indeed it blocked the New York Post's Twitter account for weeks because the Post refused to retract its original tweet about the story. Facebook also limited distribution of the story. The threat was clear enough. Even an established media outlet could lose reach and ad revenue if it reported on the story.  And the threat worked; no mainstream publication followed up on the Post article, except for a New York Times article that put the knife in by reporting on controversy over the story's publication in the Post newsroom. When the story came up during the Presidential debates, candidate Biden was able to dismiss it unchallenged as "a Russian plan [and] a bunch of garbage."

To my mind, this treatment of the Biden laptop story tells us a lot about the role that Silicon Valley intends to play in future elections. Companies like Twitter were so fearful of a second Trump victory that they seized on a dubious hacking claim to suppress the story. That act of censorship may well have changed the outcome of the election. So when the Daily Mail showed that the hacking excuse for suppressing the story was specious, I posted a link to the Daily Mail story on Twitter and Linkedin, with this introduction:

"The social media giants that won't let you say the 2020 election was rigged are the people who did their best to rig it: Hunter Biden laptop was genuine and scandalous - Daily Mail"

Linkedin (but not Twitter) decided that I couldn't say that. It sent me this message:

This is a forbidding message, as it's intended to be. If you follow the "Learn more" link you eventually come to the standards for restricting or removing accounts, which tells you, "If we determine that an account, or content posted to that account, violates the Professional Community Policies or the User Agreement, we may remove the content or place a restriction on your account. Depending on the severity of the violation, your account may be restricted indefinitely." (Emphasis added). In short, Linkedin was telling me that it might lock me out of its service if I repeated my offense.

The Linkedin message worried me.  I've got more than 5000 contacts on Linkedin, and I use it in business almost every day. Losing my account would be a blow.

Nonetheless. I hadn't been bullied by such a clueless authoritarian since high school. So instead of moving on to some less fraught topic I doubled down, posting five variants of my original post. The idea was to see exactly what it was about my original post that triggered Linkedin's antibodies. I began by simply posting "The straight news version: The Hunter Biden laptop was genuine and scandalous, according to the Daily Mail." Then I added a link to the Daily Mail story. Then I added commentary: "Social media suppressed the Hunter Biden laptop story in the middle of the 2020 election campaign. Now we know that the story they suppressed was true." In the fifth post, I was more pointed: "Social media won't let you talk about election interference in 2020. Maybe that's because it was social media that interfered in the election by suppressing a true story that would have hurt Joe Biden." And, finally, I reposted the original, which said the same thing as the fifth, but talked about "rigging" rather than "interfering with" the election.

I thought there was a real possibility that Linkedin would deplatform me for the same reason the vice principal used to discipline me in high school – my palpable lack of respect for authority. But it was a risk I was willing to take in the name of science – trying to figure out exactly what triggered Linkedin's content suppression machinery. To cut to the chase, Linkedin left up all of my posts except the one that repeated the original post. That came down, and I again was warned about Linkedin's professional standards.

What did I learn? First, I am grateful to Linkedin for a chance to recapture my youth, if only for a few hours. Second, Linkedin and its corporate parent, Microsoft, has some explaining to do. (Brad Smith, I'm talking to you.) The most charitable assessment of its policy is that it adopted a lame algorithm that suppresses claims of election rigging of any kind, no matter whether they are charges that Venezuela tampered with our voting machines or arguments that Silicon Valley used its platform power to defeat Trump. The scariest possibility is that, having first joined in suppressing stories that hurt Biden in 2020, Linkedin is now suppressing stories that criticize its role in suppressing stories that hurt Biden.

I'm guessing that a lame algorithm is the real culprit.  But frankly, I and anyone else censored by Linkedin deserves to know how that happened. That's why we need laws requiring social media to provide far more transparency and better appeal procedures when they suppress content. But such laws alone do not seem adequate to the threat.

To be clear, Linkedin, or some algorithm, or some contract employee in Arizona or the Philippines, decided that there were some views about an American Presidential election that I could not express, even to my friends. Really? That's the real offense to American free speech values. Linkedin added insult to injury when it failed to say why it didn't like my speech, but that insult carried an injury of its own: It chilled (or tried to) anything I might say in future on that topic. A prudent man wouldn't have put up any of my followon posts.

That chilling effect probably helps explain why no American media did a story on the Biden laptop after Twitter took down the Post's coverage. Even a reporter or newspaper who thinks there could be a great story in the laptop had to ask what would happen once the story went on line. If Twitter, Facebook, and YouTube suppressed it, the story would go from bombshell to bomb. It would get no reach and attract no ads. The ambiguity raises the already high cost of doing investigative journalism on this topic.

Such suppression is a recent phenomenon, less than ten years old, but Silicon Valley is not done yet.  One of my rules about the Valley is "You won't know how evil a technology can be until the engineers who maintain it begin to fear for their jobs."

Right now, social media is printing money. No one fears for their jobs, or even their yachts. But if the move to rein in social media really gathers steam, I'm confident the content suppression tools that protected Joe Biden will be used with even more enthusiasm to protect Silicon Valley itself.

Of course, at that point it will be foolish to complain. No one will hear you anyway.

357. Conservative Catfight

In the 1980s, they used to say that a conservative was a liberal who'd been mugged. Today's version is that a conservative who embraces regulation of business is a conservative who's been muzzled by Silicon Valley. David Kris kicks off this topic by reprising Justice Thomas's opinion in a case about Trump's authority to block users he didn’t like.  The case was made thoroughly moot by both the election and Twitter's blocking of Trump, but Justice Thomas wrote separately to muse on the ways in which Twitter's authority to block users could be regulated by treating the company as a common carrier or a public accommodation. David sees a trend for conservative jurists to embrace limits on Big Social's authority to suppress speech. 

I recount my recent experience being muzzled by LinkedIn, which would not let me link to a new Daily Mail story about the Hunter Biden laptop and say, "The social media giants that won't let you say the 2020 election was rigged are the people who did their best to rig it: The Hunter Biden laptop was genuine and scandalous according to the Daily Mail." To my mind, Big Social was protecting its own interests by suppressing a story that could convince people the industry has too much power over our national dialogue and our elections. (It turns out that Linkedin was triggered by a reference to the election being rigged, as I learned when I posted 5 variants of my original post, all making the same point in slightly different ways. All but the one saying Silicon Valley tried to rig the election stayed up. You can probably still see the variants on my LinkedIn account).

But my view that we should not let five or six Silicon Valley owners take over our national dialogue is challenged by Jamil Jaffer, a friend and fellow conservative who is appalled at my deviation from Republican antiregulatory orthodoxy and Citizens United first amendment doctrine.  It’s a great conservative catfight that mirrors the much greater catfight now under way in the Republican party. 

Elsewhere in the news roundup, Jordan Schneider and David dig into the claims that China has built advanced weapons systems with the help of American chip designers and Taiwanese fabs. The accusation has led the Biden administration to slap export controls on several Chinese firms. Whether this will work without more aggressive U.S. controls on, say, foreign fabs serving those firms is open to question. 

More to the point, it raises questions about long term US industrial policy. David notes that one answer, the bipartisan "Endless Frontier Act," is gaining some momentum. (I understand the bill's motivation but question its execution.) We also touch on the sad story of Intel's recent decade of missteps, and the opportunity that industrial policy has created for GlobalFoundries' IPO. 

Jamil takes on adtech espionage, and we all weigh in on the administration's cyber picks, announced over the weekend. The unanimous judgment is that Chris Inglis, Jen Easterly, and Rob Silvers are good picks – and, remarkably, ended up in the right jobs. 

In shorter hits, David and I ponder Twitch's unusual decision to start punishing people on line for misdeeds offline – misdeeds that Twitch will investigate itself. Neither of us comfortable with Twitch's decision, including its effort to do privately what we pay cops and courts to do publicly, but there is more justification for the policy in some cases (think child sexual abuse) than might be apparent at first glance. 

I tell the story of the Italian authorities identifying and arresting someone trying to hire a hitman using cryptocurrency and the dark web. As far as I know, successful cryptocurrency hitmen remain as rare as unicorns. 

David suggests that I should be glad not to live in Singapore, where the penalty for having views the establishment doesn't like could be a criminal libel judgment that I'd be forced to crowdfund like Singapore's government critics. I note that American sites like GoFundMe and Patreon have already imposed ideological screens that mean I wouldn't even be allowed to crowdfund my defense against Big Social. 

Finally, for This Week in Data Breaches, I note the new tactic of ransomware gangs trying to pressure their victims to pay by threatening the victims' customers with doxxing -- plus the remarkable phenomenon of half-billion-user data troves that the source companies say are not really the result of network breaches and so not disclosable.

And more! 

Download the 357th 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.

 

356. Who's Minding the Gap?

Our interview is with Kim Zetter, author of the best analysis to date of the weird messaging from NSA and Cyber Command about the domestic "blind spot" or "gap" in their cybersecurity surveillance. I ask Kim whether this is a prelude to new NSA domestic surveillance authorities (definitely not, at least under this administration), why the gap can't be filled with the broad emergency authorities for FISA and criminal intercepts (they don't fit, quite), and how the gap is being exploited by Russian (and soon other) cyberattackers. My most creative contribution: maybe AWS, where most of the domestic machines are being spun up, would trade faster cooperation in targeting such machines for a break on the know-your-customer rules they may otherwise have to comply with. And if you haven't subscribed to Kim's (still free for now) substack newsletter, you're missing out.

In the news roundup, we give a lick and a promise to today's Supreme Court decision in the fight between Oracle and Google over API copyrights, but Mark MacCarthy takes us deep on the Supreme Court's decision cutting the heart out of most, class actions for robocalling. Echoing Congressional Dems, Mark thinks the Court's decision is too narrow. I think it's exactly right. We both expect Congress to revisit the law soon.

Nick Weaver and I explore the fuss over vaccination passports and how Silicon Valley can help. Considering what a debacle the Google and Apple effort on tracing turned into, with a lot of help from privacy zealots, Nick and I agree that this is a tempest in a teapot. Paper vax records are likely to be just fine most of the time. That won't prevent privacy advocates from trying to set unrealistic and unnecessary standards for any electronic vax records system, more or less guaranteeing that it will fall of its own weight.

Speaking of unrealistic privacy advocates,  the much-touted GDPR privacy regime is grinding to a near halt as it moves from theory to practice. Charles-Albert Helleputte explains why. Needless to say, I am not surprised.

Mark and I scratch the surface of Facebook's Fairness Flow tool for policing AI bias. Like anything Facebook does, it's attracting heavy criticism from the left, but Mark thinks it's a useful, if limited, tool for spotting bias in machine learning algorithms.  I'm half inclined to agree, but I am deeply suspicious of what seems to be a confession, made in one "model card," that the designers of an algorithm for identifying toxic speech juiced their real-life data with what they call "synthetic data" because "real data often has disproportionate amounts of toxicity directed at specific groups." That sure sounds as though the algorithm that used real-life data produced results that weren't politically correct, so the researchers just made up data that fit their ideology and pretended it was real – an appalling step for scientists to take with so little explanation.  I welcome informed explanations and contradictions.

Nick explains why there's no serious privacy problem with the IRS subpoena to Circle, asking for the names of everyone who conducted more than $20 thousand in cryptocurrency transactions. Short answer: everybody who doesn't deal in cryptocurrency already has their transactions reported to the IRS without a subpoena.

Charles-Albert and I note that the EU is on the verge of finding that South Korea's data protection standards are "adequate" by EU standards.  The lesson for the US and China is simple: The Europeans aren't looking for compliance; they're looking for assurances of compliance. As Fleetwood Mac once sang, "Tell me lies, tell me sweet little lies."

Mark and I note the extreme enthusiasm with which the FBI used every possible high-tech tool to identify even people who simply trespassed in the Capitol on January 6. The tech is impressive, but we both suspect a backlash is coming. Nick weighs in to tell me I'm wrong when I argue that we didn't see these tools used this way against ANTIFA's 2020 rioters.

Nick also thinks we haven't paid enough attention to the Accellion breach, which leads to a discussion of whether companies are getting a little too comfortable with aggressive lawyering of their public messages after a breach. One result is likely to be a new executive order mandating broader breach notification (and other cybersecurity obligations) for government contractors, I predict.

And Charles and I talk about the UK's plan to take another bite out of end-to-end encryption services, essentially requiring them to show they can still protect kids from sexual exploitation even though they can't actually read the texts and pictures they carry. Good luck with that!

Download the 356th 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.

355. Can editorial middleware cut the power of the big platforms?

Our interview this week is with Francis Fukuyama, a fellow and teacher at Stanford and a renowned scholar and public intellectual for at least three decades. He is the coauthor of the Report of the Working Group on Platform Scale, an insightful paper on the power of platforms to suppress and shape public debate. Fukuyama understands the temptation to address those issues through antitrust lens – as well as the reasons why antitrust will fail to counter the threat that platform power poses to our democracy. As a solution, the report proposes forcing the platforms to divest their curatorial authority over what Americans (and the world) reads, creating a host of middleware suppliers who will curate consumers' feeds in whatever way consumers prefer. We explore the many objections to this approach, from first amendment purists to those, mainly on the left, who really like the idea of suppressing their opponents on the right.  But it remains the one policy proposal that could attract bipartisan support from left and right and at the same time actually make a difference.

In the news roundup, Dmitri Alperovich, Nick Weaver, and I have a spirited debate over the wisdom of Google's decision to expose and shut down a western intelligence agency's use of zero day exploits against terrorist targets. I argue that if a vulnerabilities equities process balancing security and intelligence is something we expect from NSA, we should expect the same of Google.

Nate Jones and Dmitri explore the slightly odd policy take on SolarWinds that seems to be coming from NSA and Cyber Command – who are pushing the view that the Russians exploited NSA's domestic blind spot by using US infrastructure for their attack. That suggests that NSA wants to do more spying domestically, although no such proposal has surfaced. Nate, Dmitri, and I are united in thinking that a better solution is a change in US law, though Dmitri thinks a know your customer rule for cloud providers is the best answer, while I think I persuaded Nate that empowering faster and more automatic warrant procedures for the FBI is doable, a solution that we adopted to the burner phone intercept problem in the 90s.

The courts, meanwhile, seem to be looking for ways to bring back a Potter Stewart style of jurisprudence for new technology and the fourth amendment: "I can't define it, but I know it when it creeps me out." The first circuit's lengthy oral argument on how long video surveillance of public spaces can continue without violating the fourth amendment is a classic of the genre. 

Dmitri and Nick weigh in on Facebook's takedown of Chinese hackers who were using Facebook to target Uighurs abroad. Dmitri thinks we can learn policy lessons from the exposure (and likely sanctioning) of the private Chinese companies that carried out the operation.

Dmitri also explains why CISA's head is complaining about the refusal of private companies to tell DHS which US government agencies were compromised in SolarWinds. The companies claimed that their NDAs with, say, Treasury meant that they couldn't tell DHS that Treasury had been pwned. I say that's an all too familiar example of federal turf fights hurting federal cybersecurity.  

In our ongoing feature, This Week in U.S.-China Decoupling, we cover the "Disasta in Alaska," evaluate the latest bipartisan bill to build an international Western technology sphere to compete with China's, note the completely predictable ousting of Chinese telecom companies from the US market, and conclude that the financial sector's effort to defy the gravity of decoupling will be a hard act to maintain.

Always late to embrace a trend, I offer Episode 1 of the Cyberlaw Podcast as a Non-Fungible Token to the first listener who coughs up $150, and Nick explains why it would be cheap at a tenth the price, dashing my hopes of selling NFTs for the next 354 episodes and retiring.

Nick and I have kind words for whoever is doxxing Russian criminal gangs, and I suggest offering the doxxer a financial reward (not just a hat tip in a Brian Krebs column). We have fewer kind words have for the prospect that AI will soon be able to locate, track, and bankrupt problem gamblers.   

I issue a rare correction to an earlier episode, renouncing any suggestion that Israel traded its citizens' health data for first dibs on the Pfizer vaccine. It turns out that what it offered was "deidentified aggregate health data." With proper implementation, that data may actually stay aggregate and deidentified, Nick tells me.

And I offer a hat tip to Peter Machtiger, whose student note in an NYU law journal cites the Cyberlaw Podcast, twice!

And more!

Download the 355th 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.

354. The Xi Jin Ping - Josh Hawley Tech Consensus

Our news roundup for this episode is heavy on China and tech policy. And most of the news is bad for tech companies. Jordan Schneider tells us that China is telling certain of its agencies not to purchase Teslas or allow them on the premises, for fear that Elon Musk's famously intrusive record-keeping systems will give U.S. agencies insight into Chinese facilities and personnel. Pete Jeydel says the Biden administration is prepping to make the same determination about Chinese communications and information technology, sending subpoenas to a number of Chinese tech suppliers. Meanwhile, Apple's effort to protect its consumers from apps that collect personal data is coming under pressure from what Jordan sees as a remarkable alliance of normally warring Chinese tech companies, including Baidu, Tencent, and Bytedance. In addition to their commercial heft, all these companies likely have more juice in Beijing than Apple, so look for Tim Cook to climb down from his privacy high horse in China. (And in Russia, where Apple has already agreed to let the Russian government specify the apps that must come preinstalled on iPhones sold in Russia.) Still, you can expect that Apple will continue to bravely refuse to cooperate with the FBI on terrorism and serious crime because that might set a precedent for cooperating with governments like Russia's and China's.

But the episode gets its title from our discovery that President Xi's critique of social media platforms sounds exactly like Sen. Josh Hawley's. It is, in fact, the global bien pensant consensus, which has no dissenters to speak of now that the Chinese go to Davos. Jordan offers insights into why the Chinese government's concerns about Big Tech might have origins in something other than factional strife in Beijing.

David Kris and I dive into the final word from the intelligence community on foreign governments' interference  (via hacking or influence ops) in our 2020 election. The short answer is that the Russians and the Chinese didn't hack our election machinery; in fact they didn't even try. So, chest-beating over our 2020 cyber defenses may be a little like doing a victory lap after the other team forfeits. David and I manage to disagree about a few things, including the Hunter Biden laptop story, which I contend is now the principal example of a disinformation campaign in 2020, with the media and Big Tech combining to throttle the story on spurious suspicions of a Russian hand in its provenance; David disagrees.

Pete Jeydel and Ishan Sharma, our interview guest, weigh in on the latest cyber conflict paper  from the United Nations. We all agree that it could be worse, and that getting the General Assembly to accept it was an achievement at a time of lowered expectations for the UN.

The Cyber Space Solarium Commission is not going away, Pete and I agree, as witness the most recent report card issued to the Biden Administration by a Solarium staffer. In principle, that's a good thing; commissions need to stick around and fight for their recommendations. But I can't help complaining that some of the things the Commission is fighting for – Senate confirmation of a White House cyber director, and cutting DHS out of supply chain governance – are bad ideas.

We close with a recognition of the rafts of material supplied over the years to the podcast by the data protection authorities of Europe. They've mostly been an what Texans call "all hat and no cattle" – better talkers than doers. But now their lack of serious implementation skills is catching up with them, as the companies they have penalized begin to  pursue, and win, judicial appeals. That's a trend likely to continue, and a good thing too.

Our interview is with Ishan Sharma, from the Federation of American Scientists, and author of "A More Responsible Digital Surveillance Future Multi-stakeholder Perspectives and Cohesive State & Local, Federal, and International Actions."

If you like the episodes where I disagree profoundly with my guests, this one's for you. I don't think Ishan gets more than two minutes into the interview before the critiquing begins. Still, he holds his own, defending a vision of surveillance technology that serves democratic ends and is for that reason supported and even subsidized in a global competition with the less democratic alternatives from China. I suspect that he'll lose friends on both the left and the right as he tries to walk this line, but he's clearly put a lot of thought into finding an alternative to technopessimism, and he defends it ably.

And more!

Download the 354th 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.

353. The former lingerie salesman who has Putin's knickers in a twist

This week we interview Eliot Higgins, founder and executive director of the online investigative collective Bellingcat and author of We Are Bellingcat.

Bellingcat has produced remarkable investigative scoops on everything from Saddam's use of chemical weapons to exposing the Russian FSB operatives who killed Sergei Skripal with Novichok, and, most impressive, calling a member of the FSB team that tried to kill Navalny and getting him to confess. Eliot talks about the origins of the effort (as a part-time break from his job at a lingerie company), the techniques that make Bellingcat so effective, and the hazards, physical and moral, that surround crowdsourced investigations.

In the news, Dave Aitel gives us the latest on the Chinese Exchange server attacks, and the reckless hack-everyone spree that was apparently triggered by Microsoft's patch of the vulnerability.

Jamil Jaffer introduces us to the vulnerability of the week – dependency confusion, and the startling speed with which it is being exploited.

I ask Nate Jones and the rest of the panel what all this means for government policy.  No one thinks that the Biden administration's published cyberstrategy tells us anything useful. More interesting are two deep dives on cyber strategy from people with a long history in the field. We see Jim Lewis's talk on the topic as a sign of his evolution in the direction of much harsher responses to Russian and Chinese intrusions. Dmitri Alperovich's approach also has a hard edge, although he points out that the utter irresponsibility of the Chinese pwn-em-all tactic  deserves an especially harsh response.  I ask why Cyber Command didn't respond by releasing a worm that would install poorly secured shells on every Exchange server in China.

In other news, I blame poor (or rushed) DOD lawyering for the district court ruling that DOD couldn't list Xiaomi as an entity aligned with the Chinese military. Jamil is more charitable both to DOD and the Judge who made the ruling, but he expects (or maybe just hopes) that the court of appeal will show DOD more deference.

Twitter, on the other hand, is praying that the Northern District of California suffers from full-blown Red State Derangement, as it asks the court there to enjoin the Texas Attorney General's investigation into possible anticompetitive coordination in the Great Deplatforming of January 2021. Nate gives us the basics on the lawsuit. I observe that, to bring such a Hail Mary of a case, Twitter must deeply fear what its own employees were saying about the deplatforming at the time. Neither Nate nor I give Twitter a high probability of success. And even if this case does succeed, red states are lining up a host of new laws and regulatory initiatives for Silicon Valley, most notably Gov. DeSantis's controversial effort to navigate section 230 and the first amendment.

Nate also provides a remarkably clear explanation of the sordid tale of European intelligence and law enforcement agencies trying to cut a special deal for themselves in the face of surveillance-hostile rulings from the EU's Court of Justice. The agencies are right to want to avoid those foolish decisions, but leaving the US on the hook will only inflame trans-Atlantic relations.

In quick hits, Jamil and Dave talk about Israel's Unit 8200, which offers a better cybersecurity VC alumni network than Stanford. Playing to type, I close with This Week in Sex Toy Security and immediately display my naivete: Wearables, who knew?  But the security lapses in what Dave calls the internet of junk at least offer us a new, more explicit interpretation of a man-in-the-middle attack.

And more!

Download the 353rd 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.

352. A lot of cybersecurity ideas that don't work, and a few that might

We're mostly back to our cybersecurity roots in this episode, for good reasons and bad. The worst of the bad reasons is a new set of zero-day vulnerabilities in Microsoft's Exchange servers. They've been patched, Bruce Schneier tells us, but that seems to have inspired the Chinese government hackers to switch their campaign from Stealth to Promiscuous Mode. Anyone who hasn't already installed the Microsoft patch is at risk of being compromised today for exploitation tomorrow.

Nick Weaver and Dmitri Alperovitch weigh in on the scope of the disaster and later contribute to our discussion of what to do about our ongoing cyberinsecurity. We're long on things that don't work. Bruce has pointed out that the market for software products, unfortunately, makes it entirely rational for industry to skimp on security while milking a product's waning sales. Voluntary information sharing has also failed, Dmitri notes. In fact, as OODA Loop showed in a devastating chart, information sharing is one of half a dozen standard recommendations made in the last dozen commission recommendations for cybersecurity. They either haven't been implemented or they don't work.

Dmitri is hardly an armchair quarterback on cybersecurity policy. He's putting his money where his mouth is, in the form of the Silverado Policy Accelerator, which we discuss during the interview segment of the episode. Silverado is focused on moving the cybersecurity policy debate forward in tangible, sometimes incremental, ways. It will be seeking new policy ideas in cybersecurity, international trade and industrial security, and ecological and economic security (what the group is calling Eco2Sec).  (The unifying theme is the challenge to the US posed by the rise of China and the inadequacy of our past response to that challenge.) But ideas are easy; implementation is hard. Dmitri expects Silverado to focus its time and resources both on identifying novel policy ideas and on ensuring those ideas are transformed into concrete outcomes.

Whether artificial intelligence would benefit from some strategic decoupling sparks a debate between me, Nick, Jane Bambauer, and Bruce, inspired by the final AI commission report. We shift from that to China's version of industrial policy, which seems to reflect Chinese politics in its enthusiasm not just for AI and chips but also for keeping old leaders alive longer.

Jane and I check in on the debate over social media speech suppression, including the latest developments in the Facebook Oversight Board and the unusual bedfellows that the issue has inspired. I mock Google for YouTube's noblesse oblige promise that it will stop suppressing President Trump's speech when it no longer sees a threat of violence on the Right. And then I mock it again for its silly refusal to return search results for "BlueAnon"—the Right's label for the Left's wackiest conspiracy theories. (If you think there aren't any, just google "blue anon" … oh, wait, you can't.)

In quick hits, Bruce and Dmitri explore a recent Atlantic Council report on hacked access as a service and what to do about it. Bruce thinks the problem (most often associated with the Israeli firm NSO) is real and the report's recommendations plausible. Dmitri argues that trying to stamp out a trade in zero days is solving the wrong part of the problem, since reverse engineering of software patches, not zero days, is the source of most successful attacks.  Speaking of NSO, Nick reminds us of the rumors that they have been under criminal investigation and that the investigation has been revived recently.

Jane notes that Virginia has become the second state with a consumer data protection law, and one that resembles California's CCPA.

Jane also notes the Israeli Supreme Court decision ending (sort of) Shin Bet's use cellphone data for coronavirus contact tracing. Ironically, it turns out to have been more effective than most implementations of the Gapple privacy-crippled app.

Bruce and Dmitri celebrate the hacking of three Russian cybercrime forums for the rich array of identity clues the doxxing is likely to offer researchers like Bellingcat (whose founder will be our interview guest on Episode 353 of the Cyberlaw Podcast).

And more!

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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.

351. How long before grid attacks become the new normal?

In the news roundup, David Kris digs into rumors that Chinese malware attacks may have caused a blackout in India at a time when military conflict was flaring on the two nation's Himalayan border. This leads us to Russia's targeting of the U.S. grid and to uneasy speculation on how well our regulatory regime is adapted to preventing successful grid attacks.

The Biden administration is starting to get its legs under it on cybersecurity. In its first major initiative, Maury Shenk and Nick Weaver tell us, it has called for a set of studies on how to secure the supply chain in several critical products, from rare earths to semiconductors. As a reflection of the rare bipartisanship of the issue, the President's order is weirdly similar to Sen. Tom Cotton's call to "beat China" economically.  

Nick explains the most recent story on how China repurposed an NSA attack tool to use against U.S. targets. Bottom line: It's embarrassing for sure, but it's also business as usual for attack teams. This leads us to a surprisingly favorable review of the Cyber Threat Alliance's recent paper on how to run a Vulnerability Equities Process.

Maury explains the new rules that Facebook, WhatsApp and Twitter will face in India.

Among other things, the rules will require India-based "grievance officers" to handle complaints. I am unable to resist suggesting that, if ever there were a title that the wokeforce at these companies should aspire to, it's Chief Grievance Officer.

Nick and I make short work of two purported scandals -- ICE investigators using a private utility database to enforce immigration law and the IRS purchasing cellphone location data. I argue that the first story is the work of ideologues who would loudly protest ICE access to the White Pages. And the second is a nonstory largely manufactured by Sen. Wyden.  

In a story that isn't manufactured, David and I predict that the Supremes will agree to decide the scope of cellphone border searches.  More than that, we conclude, the Ninth Circuit will lose. The hard question is how broadly the Court decides to rule once it has kicked the Ninth Circuit rule to the curb.

Maury reports that Facebook and Google have pushed the Aussie government into a compromise on paying Aussie media fees for links. Facebook gets the credit for being willing to shoot the family members the government was holding hostage (although in Facebook's case, the hostage was probably a second cousin once removed). Maury predicts that the negotiations will be tougher once the European Union starts rounding up its hostages.  

In quick hits, I claim credit for pointing out years ago that sooner or later the crybullies would come for  "quantum supremacy." And they have. Maury and I note the rise of audits for AI bias. He's mildly favorable; I am not. And I close by noting the surprisingly difficult choices illustrated by Pro Publica's story on how the content moderation sausage was made at Facebook when the Turkish government demanded that a Kurdish group's postings be taken down.

And more!

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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.

350: NSA’s Pre-History is a Love Story

This episode features an interview with Jason Fagone, journalist and author of The Woman Who Smashed Codes: A True Story of Love, Spies, and the Unlikely Heroine Who Outwitted America's Enemies. I wax enthusiastic about Jason’s book, which features remarkable research, a plot like a historical novel, and deep insights into what I call NSA’s “pre-history” – the years from 1917 through 1940, when the need for cryptanalysis was only dimly perceived by the US government. Elizebeth and William Friedman more or less invented American cryptanalysis in those years, but the full story was never known, even to NSAers. It was protected by a force even stronger even than classification – J. Edgar Hoover’s indomitable determination to get good press for the FBI even when all the credit belonged elsewhere. And, at all its crucial stages, that prehistory is a love story that lasted, literally, right to the grave. Don’t miss this (long!) interview with Jason Fagone, or his book.

Meanwhile, in the news roundup. Dmitri Alperovitch covers the latest events in what we just can’t call the SolarWinds hack any more. There’s no doubt that Microsoft code is at the center of the hack, though not because of unintended flaws; the hackers showed great interest in Microsoft’s code and took full advantage of its most easily abused features. Dmitri predicts multiple executive orders from Anne Neuberger’s review of the matter, and he hopes it means more centralization of federal civilian security monitoring and policy under CISA.

Dmitri and I agree that the Congressional effort to turn the cybersecurity director position into a Senate-confirmed White House office is more trouble than it’s worth.

The Maryland law taxing Google and Facebook ad revenue is ground-breaking, and for that reason is will also be heavily litigated. First time caller, first time listener David Fruchtman explains the tax and the litigation it has already spawned.

Which came first, China’s dream of a rare-earth boycott or U.S. nightmares of a rare-earth boycott? We ask Jordan Schneider, who suggests that neither the dream nor the nightmare is likely to come true any time soon.  

Is Australia going to war with Big Tech?  I take on Oz’s link fee and end up siding, improbably, with Mike Masnick and Facebook and against the fee. Meanwhile, the Australian infrastructure protection bill is drawing fire from Microsoft. Dmitri leans toward Microsoft’s view that the law should not give government authority to intervene when a private sector entity is unable or unwilling to respond to an attack.  I lean toward the government's position.

Jordan Schneider reviews the latest stories of tech companies getting a little too close for comfort to the Chinese surveillance state. The ByteDance censorship story is compelling but not new.  The Oracle story is compelling, new, and a clever piece of journalism by another alumna of the podcast, Mara Hvistendahl. 

Finally, in a series of quick bites, we cover:

• U.S. charges against three North Koreans who boosted their nation's GDP appreciably with their hacks.
• The ongoing Jones Day Doxtorsion.
• France’s discovery that GRU successfully targeted Centreon servers for years, and
• Sultan Meghji’s departure from The Cyberlaw Podcast for some damn thing or other

And more!

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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.

349. "This Is How They Tell Me the World Ends"

Our interview this week is with Nicole Perlroth, the New York Times reporter and author of This Is How They Tell Me the World Ends: The Cyberweapons Arms Race. It's a wide-ranging, occasionally confrontational, interview and a great tour of the issues raised in the book about 0-day exploits, US responsibility for the global cyber arms race, and the colorful personalities whose hard choices helped shape the cybersecurity environment we all now live in.

In the news roundup, Nate Jones serves up a second helping of the SuperMicro story, a rerun of a much-maligned Bloomberg report from two years ago, claiming that SuperMicro gear had been elaborately compromised by China. This time, Nate reports, Bloomberg offers much more evidence, but probably not enough to completely satisfy the critics. Still, as we conclude, even giving the critics their due, this is a very bad story for SuperMicro – and for its customers.

It seemed like a classic cybersecurity horror story, with hackers using access to the industrial control system to nearly poison Oldsmar's water supply. But Nate and I both suspect that it will turn out to be a much more mundane horror tale, one where the call is always coming from inside the house – and untraceable because all the employees use the same password and no firewall.

Paying for news links is suddenly all the rage among Western governments. I'd link to the Australian stories about their new law, but I'm afraid they'd want me to pay them. Mark MacCarthy says that risk is overrated, but the prospects for such payment schemes are pretty good. Not just Australia, but also the EU are moving in this direction. And Microsoft has expressed its willingness to let Google pay such a fee in the U.S.

I suggest that this is all part of restoring an Establishment of "authoritative narrative shapers," for the internet age, noting that the critical question will be which publishers can attach themselves firmly to the flow of internet funding – a question already causing angst among French publishers.

Paul Rosenzweig summarizes the work done by a lot of smart people on the question of how to think about Chinese technology platforms operating in the United States. He also summarizes the current state of litigation over Chinese technology platforms operating in the United States. In a word, it's mostly on hold, waiting for the Biden administration to run a laborious interagency review.

Nate says the process has already begun for a related topic – how to secure the US tech supply chain, particularly manufacturing semiconductor.

Meanwhile, the First Circuit has taken on the question of border searches of mobile phones, ruling against a coalition of cyberleft organizations. There is now a circuit conflict that could bring the Supreme Court into the fray – soon if the cyberleft losers are imprudent enough to seek cert but not much longer than that if the Solicitor General picks a favorable case to lose in the Ninth Circuit.

In short hits, I wonder at just how bad open source security has gotten, noting a clever hack that pwned many companies by putting a compromised package in a public repository, thereby trumping the companies' private packages. Luckily, NIST is all over open source security. Or not. It turns out that NIST is actually offering a host of insecure open source  products with known flaws. The purpose of the products? Better computer security, naturally. 

The creative policing award of the week goes to the Beverly Hills cop who expresses his unhappiness with being filmed on the job by playing background snippets of songs that will get the video taken down by copyright bots if it is ever posted.In the "a bout time" category, a Canadian woman who defamed dozens of ordinary people in online vendettas has been arrested in Toronto.   And EncroChat, the phone that promised criminals absolute security but delivered them into the hands of law enforcement, has spawned a complicated debate about whether stealing messages from memory  is wiretapping or hacking.  

Finally, either The Cyberlaw Podcast has hit a new high or the Harvard Law Review has hit a new low: Looking for a way to sum up the European Court of Justice's ruling in Schrems II, a student note in the Review quotes from the podcast, characterizing Schrems II as "solipsistic Europocrisy meets judicial imperialism." Couldn't have said it better myself!

And more!

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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.

348. Well, Have You Ever Seen Dr. Octopus and Sen. Klobuchar Together?

This episode features a deep dive into the National Security Agency's self-regulatory approach to overseas signals intelligence, or SIGINT. Frequent contributor David Kris takes us into the details of the SIGINT Annex that governs NSA's collection outside the US. It turns out to be a surprising amount of fun as we stop to examine the SIGINT turf wars of the 40s, the intelligence scandals of the 70s, and how they shaped NSA's corporate culture.

In the news roundup, Bruce Schneier and I review the Canadian Privacy Commissioner's determination that Clearview AI violated Canadian privacy law by scraping Canadians' photos from social media. Bruce thinks Clearview had it coming; I'm skeptical, since it appears that pretty much everyone has been scraping public face data for their machine learning collections for years.

David Kris explains why a sleepy investment review committee with practically no staff is now being compared to a SWAT team. The short answer is Sen. Cornyn.

More and more, Gus Hurwitz and I note, Big Tech CEOs are being treated in Washington like comic book supervillains.  But have they finally met their match? Sen. Amy Klobuchar is clearly campaigning to be their nemesis. Like Doc Ock, she's throwing punch after punch at Big Tech, not just in antitrust legislation but Section 230 reform as well.

We're not done with Solar Winds yet, and Bruce Schneier thinks that's fair. He critiques the company for milking profits from its software niche without reinvesting in security.

Gus returns to the theme of Big Tech at bay, noting that Australia may start charging Google for linking to Australian news sites and that the Biden administration seems quite willing to join the rest of the world in imposing more taxes on tech profits.

David covers the flap between India and Twitter, which is refusing to follow refusing to follow an Indian government order to suppress several Twitter accounts. That's probably, I suggest, because India provided insufficient proof that the accounts in question belong to Republicans.

IBM seems to be bailing on blockchain, and Bruce thinks it's about time.  In some ways, IBM is the most interesting of tech companies, since it has less of a moat around its business than most and must live by its wits, which are formidable. Bruce offers quantum computing as an example of IBM doing the right things well.

Bruce and Gus help me with a preview of an upcoming interview of Nicole Perlroth as we cover an op-ed she drew from her new book. Bruce also offers a quick assessment of the draft report of the National Security Commission on Artificial Intelligence The short version: there isn't enough there there.

Finally, Gus reminds us that a prophet who predicts the attention economy but then refuses to play by its rules is almost guaranteed to end up as an attention Cassandra, as Michael Goldhaber has.

And more!

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You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

The hidden cost of revoking the Trump travel ban

My latest op-ed, on Lawfare, argues that the Biden administration's first big counterterrorism blunder was getting rid of the Trump travel ban:

How, you might ask, could undoing such an unpopular and racist order possibly be a mistake? The answer is that, by the time of its revocation, the Trump travel ban had become something quite different from its starting point. Under pressure from the courts and the press, the leadership of the Department of Homeland Security (DHS) had reshaped Trump’s order into a calibrated security tool that depended not at all on the majority religion of the countries it affected. 

One of DHS’s great successes since 9/11 has been finding a way to let huge numbers of people into the country each day without giving up on security. The key is knowing more about each traveler, so that the government can make good risk-based decisions about who to admit. But that data-driven strategy only works if the U.S. has a minimum of cooperation from other governments. If the traveler’s home government makes it easy to obtain a fake identity, or if it refuses to tell the U.S. about travelers with criminal or terrorist ties, a border security system that depends on traveler data will fail. 

The original travel ban executive orders, issued in January and March of 2017, weren’t grounded directly in the need for such cooperation. Instead, to determine which countries were subject to the ban, the orders simply borrowed their list from past congressional and executive designations. But these orders did contemplate that the temporary ban would be followed by an interagency effort to determine the kind of information needed to admit future travelers. DHS took this as a mandate to put the ban on a new footing—one that would support its data-driven, individualized assessment of travelers by encouraging deeper cooperation from other governments. 

Many commentators have jeered at the idea of Republicans joining the Trump administration in the hope of contributing to government by sanding the rough edges off Trump’s instincts and turning them into good policy. But this is such a case. DHS officials were able to transform Trump’s off-the-cuff rhetoric into a defensible and important contribution to U.S. border security. 

By September 2017, DHS’s work was adopted in a presidential proclamation. It did not judge a handful of countries by the ethnicity or religion of their citizens; nor did it borrow its list from other legal contexts. Instead, the department had ranked 200 countries by how much help they give the U.S. in deciding who can safely be admitted to this country. 

It is an unfortunate fact that some governments don’t issue reliable identity documents, or don’t bother to tell Interpol when one of their citizens’ passports is stolen, even though such a passport can be used for a long time outside the country of issuance. Other governments are reluctant to share the criminal or terrorist records of their citizens, and a few are so hostile that the U.S. can’t count on them for any help in spotting terrorists.

The U.S. has a pretty good idea which countries are doing a good job on these and other measures of cooperation. In fact, in its initial review, DHS found almost 50 countries whose identity systems or information sharing with the U.S. needed improvement. It told them all that their citizens could be caught in an expanded and revamped travel ban.

No one wanted to end up on the new list. DHS was able to open talks, not just with the least helpful governments but with any that didn’t meet the highest standards. The result was heartening. Nearly 30 countries provided document exemplars that could be used to spot fake IDs. According to testimony by Assistant Secretary Elizabeth Neumann, three countries agreed to issue more secure passports. Nearly a dozen agreed to share more information about known or suspected terrorists. 

I have negotiated such information sharing agreements with other countries on behalf of DHS, and getting even one new agreement is an accomplishment. DHS’s achievement here is impressive.

https://www.lawfareblog.com/hidden-cost-undoing-travel-ban

347. Cybersecurity – A British Perspective

The US has never really had a "cyberczar." Arguably, though, the U.K. has. The head of the National Cyber Security Center combines the security roles of NSA and DHS's CISA. To find out how cybersecurity issues look from that perspective, we interview Ciaran Martin, the first director of the NCSC.

In the news roundup, Paul Rosenzweig sums up recent successes in taking down the NetWalker  and Emotet  hacking networks: It's a win, and that's good, but we will need more than this to change the overall security status of the country.

Jordan Schneider explains the remarkable trove of leaked Chinese police records and the extraordinary surveillance now being imposed on the Uyghur minority in China.

Enthusiasts for end-to-end encryption should be worried, Mark MacCarthy and I conclude. First, the EU – once a firm advocate of unbreakable encryption – is now touting "security through encryption and security despite encryption." You can only get the second with some sort of lawful access, an idea that has now achieved respectability inside Brussels government circles, despite lobbying by e2e messaging firms based in Europe. On top of that, there's a growing fifth column of encryption skeptics inside the firms, whose sentiments can be summarized as, "I'm all for cop-proof encryption as long as it isn't used by lawbreakers who voted for Trump."

Paul brings us up to speed on the Office 36 – I mean the SolarWinds – attack. Turns out lots of companies were compromised without any connection to SolarWinds. The episode shows that information sharing about exploits still has a ways to go. And if you're a lawyer who's been paying ten cents a page for downloads from the federal courts' electronic filing system, whatever you've been paying for, it isn't security. The attackers got in there, and as a result, we'll be making sensitive filings on paper.  First voting, then suing – more and more of our lives are heading off line.

Does China want your DNA, and why? I have a truly scary suggestion, and Jordan tries to talk me down.

The Facebook Oversight Board has issued its first decisions. Paul and Mark touch on the highlights. I predict that the board will overrule Trump's deplatforming, to surprisingly little dissent.

Jordan and I dig into two overviews of U.S. tech and military competition. It starts to feel a little incestuous when it turns out we all know the authors – and that Jordan has invited them all to be on his excellent podcast, ChinaTalk.

In short hits,

• I predict that Beijing will fight CFIUS to the last dollar of TikTok revenue. And could easily win.
• I question YouTube's demonetization of the Epoch Times, but Jordan has less sympathy for the paper.
• I'm less flexible about Google's hard-to-justify decision to block the ads of a group that (like most Americans) opposes Democratic proposals to pack the Supreme Court.
• And if you're wondering how dumb stuff like this happens, the L.A.Times gives an object lesson. Faced with a campaign to recall California governor Newsom, the Times dug into the online organizations supporting recall.  Remarkably, it found that the groups included a lot of the same kinds of folks who came to Washington in January to protest President Biden's victory. Shortly after that drive-by festival of guilt by association, Facebook banned ads supporting the recall movement. 

And more!

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Special announcement: We are thinking about hiring a part-time producer/sound engineer/intern for the Cyberlaw Podcast.  That decision hasn’t been made, but consider this a head start.  If you or someone you know would want such a position, send their resume to us at CyberlawPodcast@Steptoe.com.

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.

346. The Still-Untold Story of Electric Grid Insecurity

It's a story that has everything, except a reporter ready to tell it. A hostile state attacking the US power grid is a longstanding and quite plausible national security concern. The Trump administration was galvanized by the threat, even seizing Chinese power equipment when it arrived in the US to do a detailed breakdown of the gear and then issuing an executive order and follow-up rulings designed to cut Chinese products out of the US grid supply chain.

Yet now the Biden administration has suspended this order for 90 days – the only Trump cybersecurity order to be called into question so far. Industry lobbying? Chinese maneuvering? Tech uncertainty?  No one knows, but Brian Egan and I sketch the outlines of an irresistible story that will surely reward a persistent journalist.

The SolarWinds story, meanwhile, needs a new moniker, as the compromises spread beyond SolarWinds distributions, reaching victims like Malwarebytes. Increasingly, it looks as though Microsoft and its cloud are the common denominators, Sultan Meghji and I observe, but that's one moniker the story will never acquire.

In other cyber TTP news, the Chinese are stealing airline passenger reservation data, Sultan notes. Maybe they're just trying to find out when Mike Pompeo next plans to come to China so they can meet him at the airport and enforce their latest sanctions – no Great Wall tours for you, Mr. Secretary!

This is our last week of Trumpian cyber news, so we wallow in it. President Trump also issued a last-minute order calling for an assessment of the security risks of Chinese drones, Maury Shenk tells us. And Brian unpacks the other last-minute Trump administration order requiring U.S. U.S. cloud providers to know which foreigners they are selling virtual machines to.

I claim victory in my short letter to Secretary Mnuchin, suggesting that, instead of jamming a cryptocurrency regulation through on his watch, he concentrate on convincing Secretary-designate Yellen to carry the project through.  If he took my advice, it seems to have worked. Sultan reports that she is showing signs of wanting to "curtail" cryptocurrency. In other news, Sultan boldly predicts the advent of interplanetary cryptocurrency in Elon Musk's lifetime.

Brian and I unpack the latest Cyberspace Solarium Commission product -- its persuasive Transition Book for the Biden administration. I predict that the statutorily mandated cybersecurity director it recommends will have to be subordinated to the Deputy National Security Adviser for cybersecurity if the office is to be accepted in the White House.

And in quick hits: Maury covers the surprisingly robust European enforcement of employee protections against video surveillance. I explain Parler's loss in trying to overturn the AWS ban that pushed it off the internet. Sultan explains why the Biden Peloton is a cybersecurity risk, and I tip my hat to the President's physical fitness. I summarize the Mike Ellis story; he held the job NSA's general counsel for about a day before a political witch-hunt caught up with him, and he may never serve another day.  

And, finally, a little schadenfreude for the European Parliament, which is being investigated by the EU's lead data regulator for poor cookie notices on a website it set up for MEPs to book coronavirus tests. The complainant? Max Schrems, who is now well on his way to becoming as unpopular with European politicos as he is in the U.S.

And more!

Download the 346th 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.

345. How COVID-Tracking Phone Apps Failed

In this episode, I interview Jane Bambauer on the failure of COVID-tracking phone apps. She and Brian Ray are the authors of "COVID-19 Apps Are Terrible—They Didn't Have to Be," a paper for Lawfare's Digital Social Contract project. It turns out that, despite high hopes, the failure of these apps was overdetermined, mainly by twenty years of privacy scandalmongering and regulation. In essence, Google and Apple set far too strict rules for the apps in an effort to avoid privacy-based political attacks, and the governments that could have reined them in surrendered instead, also in order to avoid privacy-based political attacks. So, we have no one to blame but ourselves, and our delusional valuation of privacy over life itself. Sometimes, privacy really does kill.

In the news roundup, we discover that face recognition suddenly isn't toxic at all, since it can be used to identify pro-Trump protestors.  Dave Aitel explains why face recognition might work even with a mask but still not be very good.  And Jane Bambauer reprises her recent amicus argument that Illinois's biometric privacy law is a violation of the first amendment.

If you heard the part of episode 344 last week about Silicon Valley speech suppression, you might be interested in seeing a further elaboration of proposal I came up with then, now  a Washington Post Op-Ed. Meanwhile, Dave reports that Parler may be back from the dead but dependent on Russian infrastructure. Dave wants to know if that means Parler can be treated by the Biden team like TikTok was treated by the Trump administration.

Dave also brings us up to speed on the latest SolarWinds news. He also casts a skeptical eye on a recent New York Times article pointing fingers at JetBrains as a possible avenue of attack. The story was anonymously sourced and remains conspicuously unconfirmed by other reporting.

Not dead yet, the Trump administration has delivered regulations for the exclusion of risky components from the national IT and communications infrastructure. Maury Shenk explains the basics.

Speaking of which, China is getting ready to strike back at such measures, borrowing the basic blocking statute rubric invented  by the Europeans. Blocking statutes can be effective, but only by putting private companies in a vise between two inconsistent legal duties. Bad news for the companies, more work for lawyers.

I ride one more hobbyhorse, critiquing Mozilla's decision to protect "user privacy" while imposing new burdens and risks on enterprise security. The object of my ire is Firefox's Encrypted Client Hello. Dave corrects my tech but more or less confirms that this is one more nail in the coffin for CISO control of corporate networks.

Matthew Heiman and I dig into the latest ransomware gang tactics -- going after top executive emails to raise the pressure to pay. The answer? I argue for more fake emails

In our concluding quick hits, Maury tells us about the CNIL's decision that privacy law prevents France from using drones to enforce its coronavirus rules. I note a new FDIC cybersecurity rule that isn't (yay!) grounded in personal data protection. Maury explains the recently EU advocate general's opinion, which would probably make Schrems II even less negotiable than it is now.  If it's adopted by the European Court of Justice, which I argue it will be unless the Court can find some resolution that is even more anti-American than the advocate general's proposal. And, finally, Matthew tells us that the State Department has reorganized to deal with cyber issues – a reorganization that may not last longer than a few months.

Download the 345th Episode (mp3)

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