Steptoe Cyberlaw Podcast

Dave Aitel introduces a deliciously shocking story about lawyers as victims and—maybe—co-conspirators in the hacking of adversaries’ counsel to win legal disputes. The trick, it turns out, is figuring out how to benefit from hacked documents without actually dirtying one’s hands with the hacking. And here too, a Shakespearean Henry (II this time) has the answer: hire a private investigator and ask “Will no one rid me of this meddlesome litigant?” Before you know it, there’s a doxing site full of useful evidence on the internet. But first Dave digs into an intriguing but flawed story of how and why the White House ended up bigfooting a possible acquisition of NSO by L3Harris. Dave spots what looks like a simple error, and we are both convinced that the New York Times got only half the story. I suspect the White House was surprised by the leak, popped off about how bad an idea the deal was, and then was surprised to discover that the intelligence community had signaled interest.  That leads us to the reason w

It’s that time again on the Congressional calendar. All the big, bipartisan tech initiatives that looked so good a few months ago are beginning to compete for time on the floor like fat men desperate to get through a small door. And tech lobbyists are doing their best to hinder the bills they hate while advancing those they like. We open the Cyberlaw Podcast by reviewing a few of the top contenders. Justin (Gus) Hurwitz tells us that the big bipartisan compromise on privacy is probably dead for this Congress, killed by Senator Maria Cantwell (D-WA) and the new politics of abortion. The big subsidy for domestic chip fabs is still alive, Jamil Jaffer but beset by House and Senate differences, plus a proposal to regulate outward investment by U.S. firms that would benefit China and Russia. And Senator Amy Klobuchar’s (D-MIN) platform anti-self-preferencing bill is being picked to pieces by lobbyists trying to cleave away Republican votes over content moderation and national security.   David Kris unpacks t

This episode of the Cyberlaw Podcast begins by digging into a bill more likely to transform tech regulation than most of the proposals you’ve actually heard of—a bipartisan effort to repeat U.S. Senator John Cornyn’s bipartisan success in transforming the Committee on Foreign Investment in the United States (CFIUS) four years ago. The new bill holds a mirror up to CFIUS, Matthew Heiman reports. Where CFIUS regulates inward investment from adversary nation, the new proposal will regulate outward investment—from the U.S. to adversary nations. The goal is to slow the transfer of technical expertise (and capital) from the U.S. to China. It is opposed by the Chinese government and the same U.S. business alliance that angered Senator Cornyn in 2018. If it passes, I predict, it will be as part of must-pass legislation and will be a big surprise to most technology observers. The cryptocurrency world might as well make Leslie Gore its official chanteuse, because everyone is crying at the end of the crypto party. Wel

This bonus episode of the Cyberlaw Podcast is an interview with Amy Gajda, author of “Seek and Hide: The Tangled History of the Right to Privacy.” Her book is an accessible history of the often obscure and sometimes “curlicued” interaction between the individual right to privacy and the public’s (or at least the press’s) right to know. Gajda, a former journalist, turns what could have been a dry exegesis on two centuries of legal precedent into a lively series of stories behind the case law. All the familiar legal titans of press and privacy—Louis Brandeis, Samuel Warren, Oliver Wendell Holmes—are there, but Gajda’s research shows that they weren’t always on the side they’re most famous for defending.  This interview is just a taste of what Gajda’s book offers, but lawyers who are used to a summary of argument at the start of everything they read should listen to this episode first if they want to know up front where all the book’s stories are taking them.

Francisco last week at the Rivest-Shamir-Adleman (RSA) conference.  We summarize what they said and offer our views of why they said it. Bobby Chesney, returning to the podcast after a long absence, helps us assess Russian warnings that the U.S. should expect  a “military clash” if it conducts cyberattacks against Russian critical infrastructure. Bobby, joined by Michael Ellis sees this as a routine Russian PR response to U.S. Cyber Command and Director, Paul M. Nakasone’s talk about doing offensive operations in support of Ukraine. Bobby also notes the FBI analysis of the NetWalker ransomware gang, an analysis made possible by seizure of the gang’s back office computer system in Bulgaria. The unfortunate headline summary of the FBI’s work was a claim that “just one fourth of all NetWalker ransomware victims reported incidents to law enforcement.” Since many of the victims were outside the United States and would have had little reason to report to the Bureau, this statistic undercounts private-public coope

If you’ve been worrying about how a leaky U.S. government can possibly compete with China’s combination of economic might and autocratic government, this episode of the Cyberlaw Podcast has a few scraps of good news. The funniest, supplied by Dave Aitel, is the tale of the Chinese gamer who was so upset at the online performance of China’s tanks that he demanded an upgrade. When it didn’t happen, he bolstered his argument by leaking apparently classified details of Chinese tank performance. I suggest that U.S. intelligence should be subtly degrading the online game performance of other Chinese weapons systems we need more information about.  There may be similar comfort in the story of Gitee, a well-regarded Chinese competitor to Github that ran into a widespread freeze on open source projects. Jane Bambauer and I speculate that the source of the freeze was government objections to something in the code or the comments in several projects. But guessing at what it takes to avoid a government freeze will hand

At least that’s the lesson that Paul Rosenzweig and I distill from the recent 11th Circuit decision mostly striking down Florida’s law regulating social media platforms’ content “moderation” rules. We disagree flamboyantly on pretty much everything else—including whether the court will intervene before judgment in a pending 5th Circuit case where the appeals court stayed a district court’s injunction and allowed Texas’s similar law to remain in effect.   When it comes to content moderation, Silicon Valley is a lot tougher on the Libs of TikTok than the Chinese Communist Party (CCP). Instagram just suspended the Libs of Tiktok account, I report, while a recent Brookings study shows that the Chinese government’s narratives are polluting Google and Bing search results on a regular basis. Google News and YouTube do the worst job of keeping the party line out of searches. Both Google News and YouTube return CCP-influenced links on the first page about a quarter of the time.               I ask Sultan Meghji t

This week’s Cyberlaw Podcast covers efforts to pull the Supreme Court into litigation over the Texas law treating social media platforms like common carriers and prohibiting them from discriminating based on viewpoint when they take posts down. I predict that the court won’t overturn the appellate decision staying an unpersuasive district court opinion. Mark MacCarthy and I both think that the transparency requirements in the Texas law are defensible, but Mark questions whether viewpoint neutrality is sufficiently precise for a law that trenches on the platforms’ free speech rights. I talk about a story that probably tells us more about content moderation in real life than ten Supreme Court amicus briefs—the tale of an OnlyFans performer who got her Instagram account restored by using alternative dispute resolution on Instagram staff: “We met up and like I f***ed a couple of them and I was able to get my account back like two or three times,” she said.  Meanwhile, Jane Bambauer unpacks the Justice Department’

Is the European Union (EU) about to rescue the FBI from Going Dark? Jamil Jaffer and Nate Jones tell us that a new directive aimed at preventing child sex abuse might just do the trick, a position backed by people who’ve been fighting the bureau on encryption for years.  The Biden administration is prepping to impose some of the toughest sanctions ever on Chinese camera maker Hikvision, Jordan Schneider reports. No one is defending Hikvision’s role in China’s Uyghur policy, but I’m skeptical that we should spend all that ammo on a company that probably isn’t the greatest national security threat we face. Jamil is more comfortable with the measure, and Jordan reminds me that China’s economy is shaky enough that it may not pick a fight to save Hikvision. Speaking of which, Jordan schools me on the likelihood that Xi Jinping’s hold on power will be loosened by the plight of Chinese tech platforms, harsh pandemic lockdowns or the grim lesson provided by Putin’s ability to move without check from tactical err

Retraction: An earlier episode of the Cyberlaw Podcast may have left the impression that I think Google hates mothers. I regret the error. It appears that, in reality, Google only hates Republican mothers who are running for office. But to all appearances, Google really, really hates them. A remarkable, and apparently damning study disclosed that during the most recent federal election campaign, Google’s Gmail sent roughly two-thirds of GOP campaign emails to users’ spam inboxes while downgrading less than ten percent of the Dems’ messages. Jane Bambauer lays out the details, which refute most of the excuses Google might offer for the discriminatory treatment. Notably, neither Outlook nor Yahoo! mail showed a similar pattern. Tatyana thinks we should blame Google’s algorithm, not its personnel, but we’re all eager to hear Google’s explanation, whether it’s offered in the press, Federal Election Commission (FEC), in court, or in front of Congressional investigators after the next election. Jordan Schneider

Whatever else the pundits are saying about the use of cyberattacks in the Ukraine war, Dave Aitel notes, they all believe it confirms their past predictions about cyberwar. Not much has been surprising about the cyber weapons the parties have deployed, Scott Shapiro agrees. The Ukrainians have been doxxing Russia’s soldiers in Bucha and its spies around the world. The Russians have been attacking Ukraine’s grid. What’s surprising is that the grid attacks have not seriously degraded civilian life, and how hard the Russians have had to work to have any effect at all. Cyberwar isn’t a bust, exactly, but it is looking a little overhyped. In fact, Scott suggests, it’s looking more like a confession of weakness than of strength: “My military attack isn’t up to the job, so I’ll throw in some fancy cyberweapons to impress The Boss.” Would it have more impact here? We can’t know until the Russians (or someone else) gives it a try. But we should certainly have a plan for responding, and Dmitri Alperovitch and Sam Cha

The theme of this episode of the Cyberlaw Podcast is, “Be careful what you wish for.“ Techlash regulation is burgeoning around the world. Mark MacCarthy  takes us through a week’s worth of regulatory enthusiasm. Canada is planning to force Google and Facebook to pay Canadian news media for links. It sounds simple, but arriving at the right price—and the right recipients—will require a hefty dose of discretionary government intervention. Meanwhile, South Korea’s effort to regulate Google’s Android app store policies, which also sounds simple, is quickly devolving into such detail that the government might as well call it price regulation—because that’s what it is. And, Mark notes, even in China, which seemed to be moderating its hostility to tech platforms, just announced algorithm compliance audits for TenCent and ByteDance. Nobody is weeping for Big Tech, but anybody who thinks this kind of thing will hurt Big Tech has never studied the history of AT&T—or Rupert Murdoch. Incumbent tech companies have

Spurred by a Cyberspace Solarium op-ed, Nate Jones gives an overview of cybersecurity worries in the maritime sector, where there is plenty to worry about. I critique the U.S. government’s December 2020 National Maritime Cybersecurity Strategy, a 36-page tome that, when the intro and summary and appendices and blank pages are subtracted, offers only eight pages of substance. Luckily, the Atlantic Council has filled the void with its own report on the topic. Of course, the maritime sector isn’t the only one we should be concerned about. Sultan Meghji points to the deeply troubling state of industrial control security, as illustrated by at “10 out of 10” vulnerability recently identified in a Rockwell Automation ICS system.  Still, sometimes software rot serves a good purpose. Maury Shenk tells us about decay in Russia’s SORM—a site-blocking system that may be buckling under the weight of the Ukraine invasion. Talking about SORM allows me to trash a nothingburger story perpetrated by three New York Times r

With the U.S. and Europe united in opposing Russia’s attack on Ukraine, a few tough transatlantic disputes are being swept away—or at least under the rug. Most prominently, the data protection crisis touched off by Schrems 2 has been resolved in principle by a new framework agreement between the U.S. and the EU. Michael Ellis and Paul Rosenzweig trade insights on the deal and its prospects before the European Court of Justice. The most controversial aspect of the agreement is the lack of any change in U.S. legislation. That’s simple vote-counting if you’re in Washington, but the Court of Justice of the European Union (CJEU) clearly expected that it was dictating legislation for the U.S. Congress to adopt, so Europe’s acquiescence may simply kick the can down the road a bit. The lack of legislation will be felt in particular, Michael and Paul aver, when it comes to providing remedies to European citizens who feel their rights have been trampled.  Instead of going to court, they’ll be going to an administrati

A special reminder that we will be doing episode 400 live on video and with audience participation on March 28, 2022 at noon Eastern daylight time. So, mark your calendar and when the time comes, use this link to join the audience: https://riverside.fm/studio/the-cyberlaw-podcast-400  See you there! There’s nothing like a serious shooting war to bring on paranoia and mistrust, and the Russian invasion of Ukraine is generating mistrust on all sides.  Everyone expected a much more damaging cyberattack from the Russians, and no one knows why it hasn’t happened yet. Dave Aitel walks us through some possibilities. Cyberattacks take planning, and Russia’s planners may have believed they wouldn’t need to use large-scale cyberattacks—apart from what appears to be a pretty impressive bricking of Viasat terminals used extensively by Ukrainian forces. Now that the Russians could use some cyber weapons in Ukraine, the pace of the war may be making it hard to build them. None of that is much comfort to Western countrie

A special reminder that we will be doing episode 400 live on video and with audience participation on March 28, 2022 at noon Eastern daylight time. So mark your calendar and when the time comes, use this link to join the audience: https://riverside.fm/studio/the-cyberlaw-podcast-400 See you there!  For the third week in a row, we lead with cyber and Russia’s invasion of Ukraine. Paul Rosenzweig comments on the most surprising thing about social media’s decoupling from Russia—how enthusiastically the industry is pursuing the separation. Facebook is allowing Ukrainians to threaten violence against Russian leadership and removing or fact checking Russian government and media posts. Not satisfied with this, the EU wants Google to remove Russia Today and Sputnik from search results. I ask why the U.S. can’t take over Facebook and Twitter infrastructure to deliver the Voice of America to Facebook and Twitter users who’ve been cut off by their departure. Nobody likes that idea but me. Meanwhile, Paul notes that Th

Much of this episode is devoted to new digital curtain falling across Europe. Gus Horwitz and Mark-MacCarthy review the tech boycott that has seen companies like Apple, Samsung, Microsoft and Adobe pull their service from Russia. Nick Weaver describes how Russia cracked down on independent Russian media outlets and blocked access to the websites of foreign media including the BBC and Facebook. Gus reports on an apparent Russian decision to require all servers and domains to transfer Russian zone, thereby disconnecting itself from the global internet.  Mark describes how private companies in the U.S. have excluded Russian media from their systems, including how DirecTV’s decision to drop RT America led the Russian 24-hour news channel to shutter its operations. In contrast, the EU officially shut down all RT and Sputnik operations, including their apps and websites. Nick wonders if the enforcement mechanism is up to the task of taking down the websites. Gus, Dave and Mark discuss the myth making in socia

Much of this episode is devoted to how modern networks and media are influencing what has become a major shooting war between Russia and Ukraine. Dmitri Alperovitch gives a sweeping overview. Ukraine and its president, Volodymyr Zelenskyy, clearly won the initial stages of the war in cyberspace, turning broad Western sympathy into a deeper commitment with short videos from downtown Kyiv at a time when Zelenskyy was expected to be racing for the border. The narrative of determined Ukrainian resistance and hapless Russian arrogance was set in cement by the end of the week, and Zelenskyy’s ability to casually dial in to EU ministers’ meetings (and just as casually say that this might be the last time the ministers saw him alive) changed official Europe’s view of the conflict permanently. Putin’s failure to seize Ukraine’s capital and telecom facilities in the first day of the fight may mean a long, grinding conflict. Russia is doing its best to control the narrative on Russian networks by throttling Facebook, T

Troops and sanctions and accusations are coming thick and fast in Ukraine as we record the podcast. Michael Ellis draws on his past experience at the National Security Council (NSC) to guess how things are going at the White House, and we both speculate on whether the conflict will turn into a cyberwar that draws the United States in. Neither of us thinks so, though for different reasons. Meanwhile, Nick Weaver reports, the Justice Department is gearing up for a fight with cryptocurrency criminals. Nick thinks it couldn’t happen to a nicer industry. Michael and I contrast the launching of this initiative with the slow death of the China initiative at the hands of a few botched prosecutions. Michael and I do a roundup of news (all bad) about face recognition. District Judge Sharon Johnson Coleman (ND IL) gets our prize for least persuasive first amendment analysis of the year in an opinion holding that collecting and disclosing public data about people (what their faces look like) can be punished with mass