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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!

Download the 351st 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.

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!

Download the 350th 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.

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!

Download the 349th 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.

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!

Download the 348th Episode (mp3)

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

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

The 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!

Download the 347th Episode (mp3)

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)

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 to do about Silicon Valley speech suppression

The Washington Post has published my op-ed on social media speech suppression and what to do about it.  I consider and deprecate the use of section 230 and the antitrust laws, which leads me to using the tax code to induce gatekeeper platforms to break themselves up:

What if the federal government imposed a 40 percent tax on the gross revenue of gatekeeper social media companies that have more than, say, 30 million active users in the United States? Instead of fighting antitrust authorities in the trenches for years, companies faced with such a harsh tax rate would rush to break themselves up. (And if they didn’t, well, the treasury could certainly use the revenue after the bailouts of 2008-09 and 2020-21.) Efforts to avoid the tax would surely spur a proliferation of mainstream social media companies, each serving a broad audience. Some might adopt an editorial stance that leans to the left and others to the right, just as broadcast and other news media already do. But their ability to enforce ideological conformity or pursue a unified business interest would be shattered.

https://www.washingtonpost.com/opinions/2021/01/19/rein-in-big-tech-taxes/ 

344. A Wilderness of Mirror Imaging: US v. Chinese Intelligence

In this episode, I interview Zach Dorfman about his excellent reports in Foreign Policy about US-China intelligence competition in the last decade. Zach is a well-regarded national security journalist, a Senior Staff Writer at the Aspen Institute's Cyber and Technology program, and a Senior Fellow at the Carnegie Council for Ethics in International Affairs. We dive deep into his tale of how the CIA achieved remarkable penetration of the Chinese government and then lost it, inspiring China to mirror-image the Agency's techniques and build a far more professional and formidable global intelligence network.

In the news roundup, we touch on the disgraceful demonstration-cum-riot at the Capitol this week and the equally disgraceful Silicon Valley rush to score points on the right in a way they never did with the BLM demonstrations-cum-riots last summer. Nate Jones has a different take, but we manage to successfully predict Parler's shift from platform to (antitrust) plaintiff and to bond over my proposal to impose heavy taxes on social media platforms with more than ten million users. Really, why spend three years in court trying to break 'em up when you can get them to do it themselves and raise money to boot?

SolarWinds keep blowing. Sultan Meghji and Zach Dorfman give us the latest on the attribution to Russia, the fine difference between attack and espionage, and the likelihood of new direct or indirect cybersecurity regulation.

Pete Jeydel and Sultan cover the latest round of penalties imposed by the rapidly dwindling Trump administration on Chinese companies.

Nate dehypes the UK High Court decision supposedly ruling mass hacking illegal. He previews some Biden appointments, and we talk about the surprising rise of career talent in the new administration and why that might be happening. Nate also critiques DNI Grenell after accusations of politicization of intelligence. I'm kinder. But not when I condemn Distributed Denial of Services for joining forces with ransomware gangs to punish victims;  it's hard to believe that anyone could make Julian Assange and Wikileaks look responsible, but DDOS does. Speaking of Julian, he's won another Pyrrhic victory in court – likely extending his imprisonment with another temporizing win.

Download the 344th 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.

343: The Grim Lessons of the SolarWinds Breach

Episode 343 of the Cyberlaw Podcast is a long meditation on the ways in which technology is encouraging other nations to exercise soft power inside the United States. I interview Nina Jankowicz,, author of How to Lose the Information War on how Russian disinformation has affected Poland, Ukraine, and the rest of Eastern Europe – and the lessons, if any, those countries can offer a divided United States.

In the news, Bruce Schneier and I dig for more lessons in the rubble left behind by the SolarWinds hack. Nobody comes out looking good. Persistent engagement and defending forward only work if you’re actually, you know, engaged and defending, and Russia’s cyberspies managed (not surprisingly) to hide their campaign from NSA and Cyber Command. More and better defense is another answer (not that it worked during the last 40 years it’s been tried). But whatever solution we pursue, Bruce makes clear, it’s going to be expensive.

Taking a quick break from geopolitics, Michael Weiner gives us a rundown on the new charges and details (mostly redacted) in the Texas case against Google for monopolization and conspiring with competitor Facebook. The scariest thing about the case from Google’s point of view, though, may be where it’s been filed. Not Washington but the Eastern District of Texas, the most notoriously pro-plaintiff, anti-corporate jurisdiction in the country.

Returning to ways in which foreign governments are using our technology against us, David Kris tells the story of the Zoom executive who used pretextual violations of terms of service to take down speech the Chinese government didn’t like, censoring American efforts to hold a Tiananmen memorial. The good news: he was charged criminally by the Justice Department. The bad news: I can’t help suspecting that China learned this trick from the ideologues of Silicon Valley.

Aaand, right on cue, it turns out that China’s been accused of using its 50-cent army to file complaints of racism and video game violence against Americans using the platform to criticize China’s government, a tactic the target claims is getting YouTube to demonetize his videos.

Next, Bruce points us toward a deep and troubling series of Zach Dorfman articles about how effectively China is using technology to vault over US intelligence agencies in the global spying competition.

Finally, in quick succession:

• David Kris explains what’s new and what’s not in Israel’s view of international law and cyberconflict.
• I note that President Trump’s NDAA veto has been overridden, making the cyberczar and DHS’s CISA the biggest winners in the cyber policy arena.
• Bruce and I give a lick and a promise to the FinCen proposed rule regulating cryptocurrency. We’re both inclined to think more reregulation is worth pursuing, but we agree it’s too late for this administration to get anything on the books.
• David Kris notes that Twitter has been fined around $550 thousand over a data breach filing that was a few days late – a fine imposed by the Irish data protection office in a GDPR ruling that is a few years late.
• Apple has lost its bullying copyright battle against security start-up Corellium but the real risk to Corellium may be in the as-yet unresolved claim for violation of the DMCA.
• And the outgoing leadership of DHS is issuing new warnings about the cyber risks of using Chinese technology, this time touching on backdoors in TCL smart TVs and the risk of compromise from Chinese data services

Download the latest episode here.

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.

 

342. Will European Privacy Law Protect American Child Molesters?

Our interview is with Alex Stamos, who lays out a complex debate over child sexual abuse that's now roiling Brussels. The application of European privacy standards (and European AI hostility) to internet communications providers has called into question the one tool that has reduced online child sex predation. Scanning for sex abuse images works well, and even scanning for signs of "grooming" is surprisingly effective.  But both depend on automated monitoring of communications content, something that has apparently come as a surprise to European lawmakers hoping to impose more regulation on American tech platforms.  Left unchanged, the new European rules could make it easier to abuse kids all around the world.  Alex explains the rushed effort to head off that disaster – and tells us what Ashton Kutcher has to do with it (a lot, it turns out).

Meanwhile, in the news roundup, Michael Weiner breaks down the FTC's (and 46 states') long-awaited antitrust lawsuit against Facebook. Maybe the government will come up with something as the case moves forward, but its monopolization claims don't strike me as overwhelming.  And, as Mark MacCarthy points out, the likelihood that the lawsuit will do something good on the privacy front is vanishingly small.

Russia's SVR, heir to the KGB, is making headlines with a remarkably sophisticated and well-hidden cyberespionage attack on a lot of institutions that we hoped were better at defense than they turned out to be. Nick Weaver lays out the depressing story, and Alex offers a former CISO's perspective, arguing for a federal breach notification law that goes well beyond personal data and includes after-action reports that aren't locked up in post-litigation gag orders. Jamil Jaffer tells us that won't happen in Congress any time soon.

Jamil also comments on the prospects for the National Defense Authorization Act, which is chock full of cyber provisions but struggling forward under a veto threat. If you're not watching the European Parliament tie itself in knots trying to avoid helping child predators, tune in to watch American legislators tie themselves into knots trying to pass an important defense bill without drawing the ire of the President.

The FCC, in an Ajit Pai farewell, has been hammering Chinese telecom infrastructure companies. In one week, Jamil reports, the FCC launched proceedings to kick China Telecom out of the US phone network, reaffirmed its exclusion of Huawei from the same infrastructure, and adopted a "rip and replace" mandate for US providers who still have Chinese gear  in their networks.

Nick and I clash over the latest move by Apple and Google to show their contempt for US counterterrorism efforts – the banning of a location data company whose real crime was selling the data to (gasp!) the Pentagon.

Mark explains proposals for elaborate new regulation elaborate new regulation of digital intermediaries now working their way through -- where else? – Brussels. I express some cautious interest in regulation of "gatekeeper" platforms, if only to prevent Brussels and the gatekeepers from combining to slam the Overton window on conservatives' fingers.

Mark also reports on the Trump administration's principles for U.S. government use of artificial intelligence, squelching as premature my celebration at the absence of "fairness" and "bias" cant.

Those who listen to the roundup for the porn news won't be disappointed, as Mark and I dig into the details of Pornhub's brush with cancellation at the hands of Visa and Mastercard – and how the site might overcome the attack.

In short hits, Nick and I disagree about Timnit Gebru, the "ethicist" who was let go at Google after threatening to quit and who now is crying racism. I report on the enactment of a modest but useful IoT Cybersecurity law and on the doxxing of the Chinese Communist Party membership rolls as well as the adoption of the most law-enforcement-hostile technology  yet to come out of Big Tech – Amazon's Sidewalk.       

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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.

341. It’s time to pay attention when attention stops paying

Did you ever wonder where all those trillion dollar tech valuations come from?  Turns out, a lot of the money comes from online programmatic advertising, an industry that gets little attention even from the companies it's making wealthy, such as Google. That lack of attention is pretty ironic, because lack of attention is what’s going to kill the industry, according to Tim Hwang, former Google policy maven and current research fellow at the Center for Security and Emerging Technology (CSET).  In our interview, Tim Hwang explains the remarkably complex industry and the dynamics that are leaching the value out of its value proposition. Tim thinks we’re in an attention bubble, and the pop will be messy.  I’m persuaded the bubble is real but not that its end will be disastrous outside of Silicon Valley.

But first, in the news roundup Sultan Meghji and I celebrate was seems like excellent news about a practical AI achievement in predicting protein folding. It’s a big deal, and an ideal problem for AI, with one exception.  The parts of the problem that AI hasn’t solved would be a lot easier for humans to work on if AI could tell us how it solved the parts it did figure out.  Explainability, it turns out, is the key to collaborative AI-human work. 

Opening the 'Black Box' of Artificial Intelligence | RealClearScience 

We welcome first time participant and long-time listener Jordan Schneider to the panel. Jordan is the host of the unmissable ChinaTalk podcast. Given his expertise, we naturally ask him about … Australia. 

Actually, it’s a natural, because Australia is now the testing ground for many of China’s efforts to bend independent countries to its will using cyber power along with trade leverage. Among the highlights: Chinese tweets about Australian war crimes, boosted by a hamhanded bot campaign. And in a move that ought to be front an center in future justifications of the Trump administration’s ban on WeChat, the platform refused to carry the Australian prime minister’s criticism of the war-crimes tweet. Tom Cotton and Marco Rubio, call your office!

And this will have to be the Senators' fight, because it looks more and more as though the Trump administration has thrown in the towel. Its claim to be negotiating a TikTok sale after ordering divestment is getting thinner; now the divestment deadline has completely disappeared, as the government simply says that negotiations will continue.   Nick Weaver is on track to win his bet with me that CFIUS won’t make good on its Tiktok order before the mess is shoveled onto Joe Biden’s plate.

Whoever was in charge of beating up WeChat and TikTok may have checked out of the Trump administration early, but the team that’s sticking pins in other Chinese companies is still hard at work. Jordan and Brian talk about the addition of SMIC to the amorphous Defense blacklist. And Congress has passed a law (awaiting Presidential signature) that will make life hard for Chinese firms listed on U.S. exchanges.

China, meanwhile, isn’t taking this lying down, Jordan reports. It is mirror-imaging all the Western laws that it sees as targeting China, including bans on exports of Chinese products and technology. It is racing (on what Jordan thinks is a twenty-year pace) to create its own chip design capabilities.

And with some success. Sultan, the podcast’s resident DeHyper, takes some of the hype out of China’s claims to quantum supremacy.  But even dehyped, China’s achievement should be making those who rely on RSA-style crypto just a bit nervous (and that’s all of us, of course).

Michael Weiner previews the still veiled state antitrust lawsuit against Facebook and promises to come back with details as soon as it’s filed. In quick hits, I explain why we haven’t covered the Iranian claim that their scientist was rubbed out by an Israeli killer robot machine gun: I don’t actually believe them.

Brian explains that another law aimed at China and its use of Xinjian forced labor is attracting lobbyists but likely to pass. Apple, Nike, and Coca-Cola have all taken hits for lobbying on the bill; none of them say they oppose the bill, but it turns out there’s a reason for that. Lobbyists have largely picked the bones clean.

President Trump is leaving office in typical fashion – gesturing in the right direction but uninteresting in actually getting there. In a “Too Much Too Late” negotiating move, the President has threatened to veto the defense authorization act if it doesn’t include a repeal of section 230 of the Communications Decency Act. If he’s yearning to wield the veto, Dems and GOP alike seem willing to give him the chance.  They may even override, or wait until January 20 to pass it again.

Finally I commend to interested listeners the oral argument in the Supreme Court’s Van Buren case, about the Computer Fraud and Abuse Act. The Solicitor General’s footwork in making up quasitextual limitations on the more sweeping readings of the Act is admirable, and it may well be enough to keep van Buren in jail, where he probably belongs for some crime, if not this one. 

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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.

340: Henry Kissinger and Michael Daniel on How to be a Cyber Czar

Our interview in this episode is with Michael Daniel, formerly the top cybersecurity adviser in the Obama NSC and currently the CEO of the Cyber Threat Alliance.  Michael lays out CTA’s mission. Along the way he also offers advice to the Biden cyber team – drawing in part on the wisdom of Henry Kissinger.

In the news roundup, Michael joins Jamil Jaffer and Nate Jones to mull the significance of Bruce Reed’s appointment to coordinate technology issues in the Biden White House.  Reed’s tough take on Silicon Valley companies and section 230 may form the basis of a small-ball deal with Republicans on things like child sex abuse material, but none of us thinks a broader reconciliation on content moderating obligations is in the offing.

When it comes to regulating the tech sector, Brussels is a fount of proposals. The latest, unpacked by Jamil and Maury Shenk, is intended to build on the dubious success of GDPR in jumpstarting the EU’s technology industry. If it reminds you of the brilliant success of European regulation in creating a large certification authority industry, you won't be far wrong.

Maury and I puzzle over exactly how a Russian divorcee won a court order allowing access to her estranged son’s Gmail account. Our guess: the court stretched a point to conclude that the son had consented.

Another day, another China-punishing measure from the Trump administration: Jamil explains the administration’s vision of a bloc of countries that will unite in resistance to China’s punitive trade retaliation against inconvenient Western countries, most notably Australia, now getting hit hard by China.

Meanwhile, Maury reports that the administration has identified nearly 90 Chinese companies that are closely tied to the Chinese military for purposes of export control licenses. The only good news for US exporters is that the list eliminates some ambiguity about the status of some companies.

Maury also gives an overview of what most of us think is an oxymoron: Privacy in China. In fact, there is growing attention to protecting privacy at least from commercial companies. But harsh penalties, as always, are going to make observers wonder “who did that company piss off?” before they wonder “what did that company do wrong?”

Maury also reports on the effort to revive Privacy Shield – and on just how little the negotiators have to work with.

Jamil comments on the ever-rising cost of cybersecurity, and the possible implications for bank consolidation.

Nate reviews privacy and security doubts about Amazon’s Sidewalk feature, which turns Alexa devices into neighborhood WiFi networks.

Maury and I note that the deadline for a TikTok sale is a week away and maybe always will be.

Jamil wonders why ZTE asked the FCC to reconsider its exclusion of the company from the US telecoms infrastructure. The FCC order denying the request was not exactly a marketing triumph.

Jamil and I have fun asking how much snooping will go on in a proposed new fiber-optic network linking Saudi Arabia and Israel. Biggest loser? Egypt.

Nate is not surprised that France is pushing its tax for the (US) tech sector, but we debate whether the timing will turn out to be good for France or bad. I claim that White House ADHD will be France’s best friend.

Maury and I try to figure out whether there’s a public policy case in favor of the Rivada plan to take over a bunch of DoD spectrum and rent out whatever is excess to DoD needs. Maybe there is, but we can’t find it.

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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.

339: The Privacy and Europocrisy Oversight Board

Here's my favorite story from this episode: David Kris told us about a report from the Privacy and Civil Liberties Oversight Board that spelled out the enormous value that European governments have gotten in their fight against terrorism from the same American surveillance programs that European institutions have been trying for twenty years to shut down.  The PCLOB report is a delightful takedown of European virtue-signaling, and I hope the Biden Administration gives the PCLOB a new name and mission in honor of the report.

The news roundup actually begins with a review of the US-China tech relationship and how it might change under a Biden administration. The Justice Department has given itself a glowing report card for its contribution to decoupling – by opening a new China-related counterintelligence case every 10 hours. I ask how long this can go on before China starts arresting American businessmen – something that will surely kick off another round of decoupling.

Speaking of decoupling, the latest legislation aimed at prison labor in China may be getting uncomfortably close to Apple, which is quietly lobbying to water down a bill that is expected to pass soon by overwhelming majorities. Megan Stifel and I conclude that the provision that probably scares Apple most is an obligation to make representations about whether the company’s products include parts made with prison labor. That is increasingly difficult to figure out as China has limited audits for such purposes, putting Apple in a tight spot. Sympathy for Tim Cook, however, is in short supply from our panel.

Speaking of legacy burnishing, the Trump White House has issued its own set of guidelines for federal agencies using artificial intelligence. Nick Weaver thinks they're actually not bad – light touch on most topics – which may be the nicest thing he’s said about a product of this White House in four years. Sticking with AI, Nick comments on the prospect for putting humans in the loop of AI decision making.  He thinks that’s a recipe for lousy AI, and that campaigns to get a “Human in the Loop” for lethal systems have already lost the technology fight. At best, he suggests, we can hope to have our poky old brains “on the loop” in future AI conflicts.

Some good news:  An IOT security bill that Megan and I both like (Megan more than I) has passed both houses of Congress and been sent to the President for signature. It only sets standards for the IOT that the federal government buys, but that’s a good first step.

As a former NSAer, I explain “GCHQ envy” to David, and he provides the latest reason why it should be rampant at the Fort this year, as the agency introduces a new offensive cyber unit to take on organized crime and hostile states.

David also takes on the question whether there’s a legal problem with the U.S. military buying location data from apps companies.  Short answer: Nope.

Megan explains a now-patched Facebook Messenger bug that would have allowed hackers to listen in on users. Nick tells us why the FBI needed to hire robots to retrieve sensitive files. Megan gives us some staggering statistics about the prevalence of ransomware. Hint: if you thought COVID-19 was a pandemic, you ain’t seen nothin’ yet. And I give a quick summary of the TikTok and WeChat ban litigation, where the government is unlimbering a host of new technical arguments.

I take a moment to give a shoutout to Sean Joyce, whose principles led him to walk away from what is probably going to be serious money when Airbnb goes public. The company’s leadership hired him as chief trust officer. Taking trust seriously, he argued for limits on when and how much data about individual users the company gave to the Chinese government.  But the debate reportedly ended when one of the founders declared, “We’re not here to promote American values.” That's not a good look for Airbnb, but the incident says a lot about Joyce, who left the company within weeks because he didn't share its principles.

And, finally, it turns out that the FCC is in its last weeks of Trump legacy burnishing; facing a deadline in January 2020, it had to choose between starting to write regulations about the scope of section 230 and dealing with foreign products in the 5G infrastructure.  It chose 5G.

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.

338. Another week, another warhead

This week sees yet another Trump administration initiative to hasten America's decoupling from China. As with MIRV warheads, the theory seems to be that if you launch enough of them, the next administration can't shoot them all down.  Brian Egan lays out this week's initiative, which lifts from obscurity a DoD list of Chinese military companies and excludes the companies from U.S. capital markets. 

Our interview is with Frank Cilluffo and Mark Montgomery. Mark is Senior Fellow at the Foundation for Defense of Democracies and Senior Advisor to the congressionally mandated Cyberspace Solarium Commission. Previously, he served as Policy Director for the Senate Armed Services Committee under Senator John S. McCain—and before that served for 32 years in the U.S. Navy as a nuclear trained surface warfare officer, retiring as a Rear Admiral in 2017. Frank is director of Auburn University's Director of Auburn University's McCrary Institute for Cyber and Critical Infrastructure Security. He served on the Cyberspace Solarium Commission and chaired the Homeland Security Advisory Council's subcommittee on economic security.

We talk about the unexpected rise of the industrial supply chain as a national security issue. Both Frank and Mark were moving forces in two separate reports highlighting the issue, as was I. (See also my op-ed on the same topic.) So, if we seem suspiciously in agreement on supply chain issues, it's because we are suspiciously in agreement on supply chain issues. Still, as an introduction to one of the surprise hot issues of the year, it's not to be missed.

After our interview in episode 336 of a Justice Department official on how to read Schrems II narrowly, you knew it was only a matter of time before we heard from Europe. Charles Helleputte reviews the European Data Protection Board's effort to give more authoritative and less comfortable advice to U.S. companies that want to keep relying on the standard contractual clauses. The Justice Department take on the topic manages to squeak through without a direct hit from the privacy bureaucrats.  Still, the EDPB (and the EDPS even more so) makes clear that anyone following the DOJ's lead is in for an uphill fight. (For those who want more of Charles's thinking on the topic, see this short piece.)

Zoom has been allowed to settle an FTC proceeding for deceptive conduct (claiming that its crypto was end to end when it wasn't, and more). Mark MacCarthy gives us details.  I throw shade on the FTC's failure to ask any serious national security questions about a company that deserves some. 

Brian brings us up to speed on TikTok.  Only one of the Trump administration penalties remains unenjoined. My $50 bet with Nick Weaver -- that CFIUS will overcome the judicial skepticism that IEEPA could not -- is hanging by a thread. Casey Stengel makes a brief appearance to explain why TikTok might win. 

Brian also reminds us that export control policymaking is even slower and less functional on the other side of the Atlantic, as Europe tries, mostly ineffectively, to adopt stricter limits on exports of surveillance tech. 

Mark and I admire the new Aussie critical-infrastructure cybersecurity initiative, for its clarity if not for its likely political appeal. 

Charles explains and I decry the enthusiasm of European courts for telling Americans what they can say and read on line, as an Austrian court tells Facebook to take down worldwide the description of an Austrian politician as belonging to a "fascist party." Apparently, we aren't allowed to say that political censorship is what members of a fascist party tend to advocate; but don't worry about our liability; we can't pronounce the plaintiff's name.  

So, in retrospect, how did the United States do in policing all the new cyberish threats to the 2020 election? 

• Brian gives the government credit for preventing foreign interference. I question the whole narrative of foreign interference, which didn't have much effect in 2016 or 2020 (other than the hack and dump operation against the DNC) but did align conveniently with Democratic messaging in both years (Hillary only lost because of the Russians! Ignore Trump's corruption allegations because they're just more Russian interference!).
• Mark and I wonder what Silicon Valley thinks it's accomplishing with its extended bans on political advertising after the election.  After all, it's almost always election season somewhere (see, e.g., Georgia).
• DHS's CISA did produce a detailed rumor control site that helped correct misunderstandings -- but may have corrected one too many of the President's tweets.  In consequence, Under Secretary Chris Krebs, familiar to Cyberlaw Podcast listeners, may be on the chopping block. That would be a shame for DHS and CISA; for Chris it's probably a badge of honor. Frank Cilluffo and Mark Montgomery weigh in with praise for Chris as well.

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 Chinese supply chain problem

An excerpt from my latest Washington Post article:

How to deal with the risks to homeland and national security posed by trade with China (and Russia) is the focus of a report by the Department of Homeland Security Advisory Council that is scheduled to be released Thursday. I took part in the study, which reinforces and adds to recent bipartisan supply-chain recommendations of the Cyberspace Solarium Commission.

The danger from U.S. dependence on trade with China has been growing across more than three decades. Administrations before Trump's clung to an increasingly forlorn hope that opening U.S. markets to Chinese goods would mean cheaper materials for U.S. industries and a growing Chinese commitment to democracy and open markets.

By 2016, though, China's aims were clear: Create a domestic alternative to practically every technology it bought from the United States, then allow these Chinese tech companies to squeeze out their Western competitors. Safe from competition at home, the flourishing Chinese companies could target foreign markets, too. Meanwhile, the doctrine of "civil-military fusion" would ensure that the People's Liberation Army benefited from its domestic commercial technology development.

The report of the Homeland Security Advisory Council will be posted here under Recommendations. The Cyberspace Solarium paper is here.

336. Could Kim Jong Un kill 300 million Americans today?

This episode's interview with Dr. Peter Pry of the EMP Commission raises an awkward question: Is it possible that North Korea already has enough nuclear weapons to cause the deaths of hundreds of millions of Americans -- by permanently frying our electrical infrastructure with a single high-altitude blast?  And if he doesn't, could the sun accomplish pretty much the same thing?  The common factor in both scenarios is EMP – electro-magnetic pulse. We explore the problem in detail, from the capabilities of adversaries to the controversy that has pitted Dr. Pry and the EMP Commission against the power industry and the Energy Department, which are decidedly more confident that the US would withstand a major EMP event. And, for those disinclined to trust those sources, Dr. Pry offers a few tips on how to make it more likely that your systems will survive an EMP.

In the news, the election turned out not to be hacked, not to be violence-plagued, and not to be the subject of serious disinformation. That didn't stop Twitter and YouTube from overreacting when a leftie hate-object, Steve Bannon, used hyperbole ("heads on pikes") to express his unhappiness with Dr. Fauci. Really, Twitter's Trust and Safety operation is so blinkered it can't be fixed and should be nuked from orbit.  Oh, wait, there goes my Twitter account and my YouTube career!

In legal tech news, Michael Weiner explains what's at stake in the Justice Department's antitrust lawsuit challenging Visa's $5.3 billion acquisition of Plaid. I wonder if that means the Department is out of antitrust-litigating ammo.  And it might be, except that you can buy a lot of ammo with $1 billion worth of Silk Road bitcoins, now being claimed by the US. Sultan Meghji says the real question is why it took the U.S. so long to lay claim to the coins.

 Just when private companies have come up with plans to comply with California's privacy law, the voters there change everything.  Well, maybe not everything.  It looks, Dan Podair suggests, as though compliance with the new CPRA will mostly involve complying with the old CCPA plus a whole bunch more. Meanwhile, I'm fascinated by the idea that California initiatives can say, "Oh, and by the way, this law can only be amended to make it more demanding." 

 We bring Michael back to the conversation to brief us on the FTC's plan to launch an antitrust case against Facebook using its own administrative law judges to hear the evidence. Michael admits that some might call that a kangaroo court; I suggest that LabMD's Mike Dougherty be called as an expert witness.

 Sultan and I note the ongoing failure of media and rights groups to successfully toxify facial recognition technology; now it's been used to identify a "mostly peaceful" protestor who allegedly took a break from peacefulness to punch a cop.  And it's hard to argue with using face recognition when it confirms a picture ID the suspect left behind in Lafayette Square. 

 Next, Sultan and I take on Toxification II, the campaign to make people believe that racist artificial Intelligence is a thing. Poorly trained AI is definitely a thing, Sultan argues, but that doesn't make for the same kind of story.

 Charles Helleputte analyzes the latest rumor that the EU is planning to prohibit end-to-end crypto. He notes that the EU is also pursuing more infrastructure security and wonders whether the two initiatives can be sustained together.

It turns out that other people on Zoom can, in theory and under the right conditions, guess what you're typing.  It's one more reason to be careful about webcams and security. I make the sort of cheap Jeffrey Toobin joke you've come to expect from me.

 And more.

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Music by Weissman Sound Design. 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.

336, Trumping Schrems II

Our interview this week is a deep dive into the mess created by the EU Court of Justice in Schrems II – and some pretty good ideas for how companies might avoid the mess, courtesy of a U.S. Government white paper. I interview Brad Wiegmann, Senior Counselor for the National Security Division at the US Department of Justice about the white paper. We cover a host of arguments and new facts that may help companies navigate the wreckage of Privacy Shield and preserve the standard corporate clauses they’ve relied on for transAtlantic data transfers. And, yes, the phrase “hypocritical European imperialism” does cross my lips.

In the news, we can’t let election eve pass without a look at all the election security threats and countermeasures now being deployed.  I argue that the election security threat is the second coming of Y2K – a threat that is almost certainly an overhyped bogeyman, but one we can’t afford to ignore.  Jamil Jaffer and Pete Jeydel push back. Silicon Valley’s effort to ensure that no one questions the legitimacy of a Biden victory also comes in for some criticism on my end – and is defended by Nate Jones. My nomination for Flakiest Silicon Valley Election Security Techno-nostrum is the banning of post-election political ads. That just guarantees that speech about the election will default to the biggest “organic” voices on the internet and to the speech police at each platform. Or was that the intent?

Confused about all the TikTok and WeChat litigation? It's pretty simple, really: the US hasn’t won a single case, and it’s gone down hard in three separate opinions, the latest by US District Judge Beetlestone of Philadelphia. This could be Trump Derangement at work, but the fact is that the Chinese platforms have a plausible argument that Congress prohibited the use of IEEPA to "indirectly regulate" distribution of speech. Banning a social platform might seem to fit within that prohibition, but the result is crazy: it implies that TikTok could replay all the Russian election interference memes from 2016, and the government would be helpless to stop it. On appeal, we may see the courts taking a broader view of the equities. Or they may be tempted to say, “Well, Congress screwed this up, let Congress unscrew it.” 

Nate and I try to sum up what we learned from the social media speech suppression hearing on the Hill. Nate sees no common ground emerging despite wide unhappiness with Silicon Valley’s role in regulating speech. I am more optimistic that a Congress looking to make progress could agree on first steps toward transparency practices on the platforms. The companies themselves seem to have decided that this is table stakes as they strive to avoid worse. 

Nate gives us a quick view of the platform speech debate in Europe.  My summary: Silicon Valley is already incentivized by EU law to oversuppress; now they’re asking for immunity when they oversuppress, which means, of course, even more suppression. 

In quick hits, Pete talks about the ransomware threat to US health care. Nate explains the tensions between law enforcement and intelligence in Canada. And Pete tells us why fertility clinics are the latest national security concern for CFIUS. 

And more!

Download the 336th 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.

335. Digital Dunkirk

In this episode, I interview Rob Knake, Senior Fellow at the Council on Foreign Relations, about his recent report, "Weaponizing Digital Trade -- Creating a Digital Trade Zone to Promote Online Freedom and Cybersecurity." The theme of the report is what the US can salvage from the wreckage of the 1990s Magaziner Consensus about the democratizing and beneficent influence of an unregulated Silicon Valley. I suggest that, when you're retreating from global ambition to a battered band of democratic nations, talking about "weaponization"  is delusional; what the paper really proposes is a kind of "Digital Dunkirk." Rob and I proceed to disagree about the details but not the broad outlines of his proposal.

In the news roundup, we finally have a Google antitrust complaint to pore over, and I bring Steptoe's Michael Weiner on to explain what the complaint means. Bottom line: it's a minimalist stub of a case, unlikely to frighten Google or produce structural changes in the market -- unless a new administration (or a newly incentivized Trump Justice Department) keeps adding to the charges as the investigation wears on.

Speaking of Justice Department filings that serve up less than meets the eye, DOJ has indicted GRU hackers for practically every bad thing that has happened on the internet in the last five years, other than the DNC hack. (In fact, I lost an unsaved Word document in 2017 that I'm hoping will be added to the charges soon.) The problem, of course, is that filing the charges is the easy part; bringing these state hackers to justice is so hard as to be more or less inconceivable.  So one wonders (along with Jack Goldsmith) whether a policy that requires a stream of indictments for all the cyberattacks on the US and its allies is a wise use of resources. Maury Shenk thinks it might be, at least as a way of demonstrating US attribution capabilities, which are indeed impressively showcased in the indictment.

While we're on the subject of questionably effective US retaliation for cyberattacks, Maury notes that the Treasury Department has imposed sanctions on the unpronounceable Russian institute, TsNIIKhM, that seems to have developed the industrial control malware that caused massive outages in Saudi Arabia and that may still be planted in US energy systems as well. Again, no one doubts that heavy penalties should be imposed; the question is whether these penalties will actually ever reach TsNIIKhM.

In another law enforcement action against cyberattacks, Nick Weaver celebrates the German government's dawn raid on spyware exporter, FinFisher. And Maury expresses modest hope for Facebook's Oversight Board now that it has started reviewing content moderation cases. Color me skeptical.

Now that we've seen the actual complaint, Nick has his doubts about Microsoft's legal attack on Trickbot. It may be working, he says, but why is Microsoft doing something that the FBI could have done? I pile on, raising questions about the most recent legal theory Microsoft has rolled out in support of its proposed remedies.

Finally, in quick hits:  I hum a few bars from "John Henry" in response to a Bloomberg story suggesting that CEOs are successfully beating the AI engines parsing their analyst calls and trading on the results. Maury then debunks the parts of the story that made it fun, but not before I've asked whether Spinal Tap was decades ahead of its time in repackaging failure for AI consumption. Maury notes what I predict will be ho-hum Judiciary Committee testimony of Twitter and Facebook CEOs about their suppression of the New York Post "laptop from hell" Hunter Biden story.  I'm much more interested in the Commerce Committee's subpoenaing of contacts between the campaigns and those companies.  Because you just know the campaigns have a whole strategy for working the speech referees of Silicon Valley, and it would be an education to see how they do it.  Nick and I congratulate Edward Snowden on the confirmation that he'll be in Russia forever. And I mock the Portland City Council as well as all the journalists who tried to make face recognition toxic – until it turned out that face recognition might help antifa dox the police.  Suddenly we can't expect to stop the march of technology.

Download the 335th 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.

334: Fight Like a Canadian

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

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

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

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

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

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

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

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

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

And more! 

 Download the 334th Episode (mp3)

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

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.

 

333. Interview with David Ignatius

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

Download the 333^rd 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! Our thanks to Ken Weissman of Weissman Sound Design for the new theme music.  

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.

332.Internet of Junk

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

To kick things off in episode 332, Matthew Heiman returns to the podcast; he analyzes a new decision of the Court of Justice of the EU. The CJEU claims in its headline holding to put limits on governments' mass collection of mobile and internet data, but both Matthew and I think the court's footnotes take away much of the doctrine the headlines proclaims – and maybe in a way that will help the US as it tries to work around the CJEU’s foolhardy decision in Schrems II.

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

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

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

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

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

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

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

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

And more!

Download the 332^nd 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. Thanks to Ken Weissman of Weissman Sound Design for our theme music.

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.

331. Damned if You Do, and Damned if You Don’t (Pay the Ransom)

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

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

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

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

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

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

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

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

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

And more!

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

Download the 331^st 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.

330: US-China Tech Divide – Where Will it End?

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

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

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

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

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

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

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

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

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

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

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

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

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

Download the 330th Episode (mp3)

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

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