The Cyberlaw Podcast

The Cyberlaw Podcast A weekly podcast offering an opinionated roundup of the latest events in technology, security, privacy, and government and an in-depth interview of technology and policy newsmakers. Host Stewart Baker and regulars share their views  – and not those of the firm.

  • Episode 361: Computers Will Soon Be Hacking Us. If They Aren’t Already.
    by Steptoe & Johnson LLP on May 10, 2021 at 12:00 am

    Bruce Schneier joins us to talk about AI hacking in all its forms. He’s particularly interested in ways AI will hack humans, essentially preying on the rough rules of thumb programmed into our wetware – that big-eyed, big-headed little beings are cute and need to have their demands met or that intimate confidences should be reciprocated. AI may not even know what it’s doing, since machines are famous for doing what works unless there’s a rule against it. Bruce is particularly interested in law-hacking – finding and exploiting unintended consequences buried in the rules in the U.S. Code. If any part of that code will lend itself to AI hacking, Bruce thinks, it’s the tax code (insert your favorite tax lawyer joke here). It’s a bracing view of a possible near-term future.; In the news, Nick Weaver and I dig into the Colonial Pipeline ransomware attack and what it could mean for more aggressive cybersecurity action in Washington than the Biden administration was contemplating just last week as it was pulling together an executive order that focused heavily on regulating government contractors.; Nate Jones and Nick examine the stalking flap that is casting a cloud over Apple’s introduction of AirTags.; Michael Weiner takes us through a quick tour of all the pending U.S. government antitrust lawsuits and investigations against Big Tech. What’s striking to me is how much difference there is in the stakes (and perhaps the prospects for success) depending on the company in the dock. Facebook faces a serious challenge but has a lot of defenses. Amazon and Apple are being attacked on profitable but essentially peripheral business lines. And Google is staring at existential lawsuits aimed squarely at its core business.; Nate and I mull over the Russian proposal for a UN cybercrime proposal. The good news is that stopping progress in the UN is usually even easier than stopping legislation in Washington.; Nate and I also puzzle over ambiguous leaks about what DHS wants to do with private firms as it tries to monitor extremist chatter online. My guess: This is mostly about wanting the benefit of anonymity or a fake persona while monitoring public speech.; And then Michael takes us into the battle between Apple and Fortnite over access to the app store without paying the 30% cut demanded by Apple. Michael thinks we’ve mostly seen the equivalent of trash talk at the weigh-in so far, and the real fight will begin with the economists’ testimony this week.  Nick indulges a little trash talk of his own about the claim that Apple’s app review process provides a serious benefit to users, citing among other things the litigation-driven disclosure that Apple never send emails to users of the 125 million buggered apps it found a few years back.; Nick and I try to make sense of stories that federal prosecutors in 2020 sought phone records for three Washington Post journalists as part of an investigation into the publication of classified information that occurred in 2017.; I try to offer something new about the Facebook Oversight Board’s decision on the suspension of President Trump’s account. To my mind, a telling and discrediting portion of the opinion reveals that some of the board members thought that international human rights law required more limits on Trump’s speech – and they chose to base that on the silly notion that calling the coronavirus a Chinese virus is racist. Anyone who has read Nicholas Wade’s careful article knows that there’s lots of evidence the virus leaked from the Wuhan virology lab. If any virus in the last hundred years deserves to be named for its point of origin, then, this is it. Nick disagrees.; Nate previews an ambitious task force plan on tackling ransomware. We’ll be having the authors on the podcast soon to dig deeper into its nearly 50 recommendations.; Signal is emerging a Corporate Troll of the Year, if not the decade. Nick explains how, fresh from trolling Cellebrite, Signal took on Facebook by creating a bevy of personalized Instagram ads that take personalization to the Next Level. Years after the fact, the New York Attorney General has caught up with the three firms that generated fake comments opposing the FCC’s net neutrality rollback. They’ll be paying fines. But I can’t help wondering why anyone thinks it’s useful to think about proposed rules by counting the number of postcards and emails that shout “yes” or “no” but offer no analysis.; And more!; 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 [email protected] 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.

  • Episode 360: The Robot Apocalypse and You
    by Steptoe & Johnson LLP on May 3, 2021 at 2:00 pm

    Our interview is with Kevin Roose, author of Futureproof: 9 Rules for Humans in the Age of Automation debunks most of the comforting stories we use to anaesthetize ourselves to the danger that artificial intelligence and digitization poses to our jobs. Luckily, he also offers some practical and very personal ideas for how to avoid being caught in the oncoming robot apocalypse.; In the news roundup, Dmitri Alperovitch and I take a few moments to honor Dan Kaminsky, an extraordinary internet security and even more extraordinarily decent man. He died too young, at 42, as Nicole Perlroth demonstrates in one of her career-best articles.; Maury Shenk and Mark MacCarthy lay out the EU’s plan to charge Apple with anti-competitive behaviour in running its app store.; Under regulation-friendly EU competition law, the more austere U.S. version, it sure looks as though Apple is going to have trouble escaping unscathed.; Mark and I duke it out over Gov. DeSantis’s Florida bill on content moderation reform.; We agree that it will be challenged as a violation of the First Amendment and as preempted by federal section 230. Mark thinks it will fail that test. I don’t, especially if the challenge ends up in the Supreme Court, where Justice Thomas at least has already put out the “Welcome” mat.; Dmitri and I puzzle over the statement by top White House cyber official Anne Neuberger that the U.S. reprisals against Russia are so far not enough to deter further cyberattacks. We decide it’s a “Kinsley gaffe” – where a top official inadvertently utters an inconvenient truth.; This Week in Information Operations: Maury explains that China may be hyping America’s racial tensions not as a tactic to divide us but simply because it’s an irresistible comeback to U.S. criticisms or Chinese treatment of ethnic minorities. And Dmitri explains why we shouldn’t be surprised at Russia’s integrated use of hacking and propaganda. The real question is why the US has been so bad at the same work.; In shorter stories: Mark covers the slooow rollout of an EU law forcing one-hour takedowns of terrorist content; Dmitri tells us about the evolution of ransomware into, full-service doxtortion as sensitive files of the C. Police Department are leaked online; Dmitri also notes the inevitability of more mobile phone adtech tracking scandals, such as the compromise of US military operations; Maury and I discuss the extent to which China’s internet giants find themselves competing, not for consumers, but for government favor, as China uses antitrust law to cement its control of the tech sector; Finally, Dmitri and I unpack the latest delay in DOD’s effort to achieve cybersecurity maturity through regulatory-style compliance, an effort Dmitri believes is doomed; And more!; 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 [email protected] 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.

  • Episode 359: The Cybersecurity Benefits of Desk Drawers
    by Steptoe & Johnson LLP on April 26, 2021 at 2:00 pm
  • Episode 358: Cybersecurity Issues On The Congressional Agenda
    by Steptoe & Johnson LLP on April 19, 2021 at 2:00 pm

    Our interview is with Mark Montgomery and John Costello, both staff to the Cyberspace Solarium Commission. The Commission, which issued its main report more than a year ago, is swinging through the pitch, following up with new white papers, draft legislative language, and enthusiastic advocacy for its recommendations in Congress, many of which were adopted last year. That makes it the most successful of the many cybersecurity commissions that have come and gone in Washington. And it’s not done yet. Mark and John review several of the most important legislative proposals the Commission will be following this year. I don’t agree with all of them, but they are all serious ideas and it’s a good bet that a dozen or more could be adopted in this Congress.; In the news roundup, David Kris and I cover the FBI’s use of a single search warrant to remove a large number of web shells from computers infected by China’s irresponsible use of its access to Microsoft Exchange. The use of a search (or, more accurately, a seizure warrant) is a surprisingly far-reaching interpretation of federal criminal Rule 41. But despite valiant efforts, David is unable to disagree with my earlier expressed view that the tactic is lawful.; Brian Egan outlines what’s new in the Biden administration’s sanctions on Russia for its SolarWinds exploits. The short version: While some of the sanctions break new ground, as with Russian bonds, they do so cautiously.; Paul Rosenzweig, back from Costa Rica, unpacks a hacking story that has everything – terrorism, the FBI, Apple, private sector hacking, and litigation. Short version: we now know the private firm that saved Apple from the possibility of an order to hack its own phone. It’s an Australian firm named Azimuth that apparently only works for democratic governments but that is nonetheless caught up in Apple’s bully-the-cybersecurity-researchers litigation campaign.; Gus Hurwitz talks to us about the seamy side of content moderation (or at least on seamy side) – the fight against “coordinated inauthentic behaviour.;” In quicker takes, Paul gives us a master class in how to read the intel community’s Annual Threat Assessment. David highlights what may be the next Chinese telecom manufacturing target, at least for the GOP, after Huawei and ZTE. I highlight the groundbreaking financial industry breach notification rule that has finished now the comment period and is moving toward adoption. And Gus summarizes the state of Silicon Valley antitrust legislation –  everyone has a bill – so no one is likely to get a bill.; And more!; 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.

  • Episode 357: Conservative Catfight
    by Steptoe & Johnson LLP on April 12, 2021 at 2:00 pm

    They used to say that a conservative was a liberal who’d been mugged. Today’s version is that a conservative who’s comfortable with business regulation is a conservative who’s been muzzled by Silicon Valley. David Kris kicks off this topic by introducing Justice Thomas’s opinion in a case over Trump’s authority to block users he didn’t like.  The case was made thoroughly moot by both the election and Twitter’s blocking of Trump, but Justice Thomas wrote separately to muse on the ways in which Twitter’s authority to block users could be regulated by treating the company as a common carrier or public accommodation. David sees a trend among conservative jurists to embrace limits on Big Social’s authority to suppress speech.; I recount my experience being muzzled by LinkedIn, which would not let me link to a new Daily Mail story about the Hunter Biden laptop and say, “The social media giants that won’t let you say the 2020 election was rigged are the people who did their best to rig it: The Hunter Biden laptop was genuine and scandalous according to the Daily Mail.” To my mind, this is Big Social protecting its own business interests by suppressing a story that could convince people that the industry has too much power over our national dialogue and our elections. (I mocked LinkedIn by posting 5 variants of my original post, all making the same point in slightly different ways. You can see this on my LinkedIn account result).; But my view that we should not let five or six Silicon Valley owners take over our national dialogue is challenged by Jamil Jaffer, a friend and conservative who is appalled at my deviation from Republican antiregulatory orthodoxy and first amendment doctrine.  It’s a great conservative catfight that mirrors the much greater catfight now under way in the Republican party.; Elsewhere in the news roundup, Jordan Schneider and David dig into the claims that China has built advanced weapons systems with the help of American chip designers and Taiwanese fabs. The accusation has led the Biden administration to slap export controls on several Chinese firms. Whether this will work without more aggressive U.S. controls on, say, foreign fabs serving those firms is open to question.; More to the point, it raises questions about long term US industrial policy. David notes that one answer, the bipartisan “Endless Frontier Act,” is gaining some momentum. (I understand the motivation but question the execution.) We also touch on the sad story of Intel’s recent missteps, and the opportunity that industrial policy has created for GlobalFoundries’ IPO.; Meanwhile Jamil takes on AdTech espionage, while S. Senators ask Digital-Ad auctioneers to name foreign clients amid national-security concerns.; We all weigh in on the administration’s cyber picks, announced over the weekend. The unanimous judgment is that Chris Inglis, Jen Easterly, and Rob Silvers are good picks – and, remarkably, ended up in the right jobs.; In shorter hits, David and I ponder Twitch’s unusual decision to start punishing people on line for misdeeds offline – misdeeds that Twitch will investigate itself. While neither of us comfortable with the decision, including the effort to do privately what we pay cops and courts to do publicly, but there is more justification for the policy in some cases (think child sexual abuse) than might be apparent at first glance.; I tell the story of the Italian authorities identifying and arresting someone trying to hire a hitman using cryptocurrency and the dark web. As far as I know, successful cryptocurrency hitmen remain as rare as unicorns.; David suggests that I should be glad not to live in Singapore, where the penalty for information the establishment doesn’t like is a criminal libel judgment that I’d be forced to crowdfund like Singapore’s government critics. I note that American sites like GoFundMe and Patreon have already imposed ideological screens that mean I wouldn’t be able to crowdfund my defense against Big Social.; And, for This Week in Data Breaches, I note the new tactic of ransomware gangs trying to pressure their victims to pay by threatening the victims’ customers with doxxing plus the remarkable phenomenon of half-billion-user data troves that the source companies say are not really the result of network breaches and so not disclosable.; And more!; 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 [email protected] 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.

  • Episode 356: Who Minds the Gap
    by Steptoe & Johnson LLP on April 5, 2021 at 2:00 pm

    Our interview is with Kim Zetter, author of the best analysis to date of the weird messaging from NSA and Cyber Command about the domestic “blind spot” or “gap” in their cybersecurity surveillance. I ask Kim whether this is a prelude to new NSA domestic surveillance authorities (definitely not, at least under this administration), why the gap can’t be filled with the broad emergency authorities for FISA and criminal intercepts (they don’t fit, quite), and how the gap is being exploited by Russian (and soon other) cyberattackers. My most creative contribution: maybe AWS, where most of the domestic machines are being spun up, would trade faster cooperation in targeting such machines for a break on the know-your-customer rules they may otherwise have to comply with. And if you haven’t subscribed to Kim’s (still free for now) substack newsletter, you’re missing out.; In the news roundup, we give a lick and a promise to today’s Supreme Court decision in the fight between Oracle and Google over API copyrights, but Mark MacCarthy takes us deep on the Supreme Court’s decision cutting the heart out of most, class actions for robocalling. Echoing Congressional Dems, Mark thinks the Court’s decision is too narrow. I think it’s exactly right. We both expect Congress to revisit the law soon.; Nick Weaver and I explore the fuss over vaccination passports and how Silicon Valley can help. Considering what a debacle the Google and Apple effort on tracing turned into, with a lot of help from privacy zealots, I’m pleased that Nick and I agree that this is a tempest in a teapot. Paper vax records are likely to be just fine most of the time. That won’t prevent privacy advocates from trying to set unrealistic and unnecessary standards for any electronic vax records system, more or less guaranteeing that it will fall of its own weight. Speaking of unrealistic privacy advocates, Charles-Albert Helleputte explains why the much-touted GDPR privacy regime is grinding to a near halt as it moves from theory to practice. Needless to say, I am not surprised.; Mark and I scratch the surface of Facebook’s Fairness Flow for policing AI bias. Like anything Facebook does, it’s attracted heavy criticism from the left, but Mark thinks it’s a useful, if limited, tool for spotting bias in machine learning algorithms.  I’m half inclined to agree, but I am deeply suspicious of the confession in one “model card” that the designers of an algorithm for identifying toxic speech seem to have juiced their real-life data with what they call “synthetic data” because “real data often has disproportionate amounts of toxicity directed at specific groups.” That sure sounds as though the algorithm relying on real data wasn’t politically correct, so the researchers just made up data that fit their ideology and pretended it was real – an appalling step for scientists to take with little notice. I welcome informed contradiction.; Nick explains why there’s no serious privacy problem with the IRS subpoena to Circle, asking for the names of everyone who has more than $20 thousand in cryptocurrency transactions. Short answer: everybody who doesn’t deal in cryptocurrency already has their transactions reported to the IRS without a subpoena.; Charles-Albert and I not that the EU is on the verge of finding that South Korea’s data protection standards are “adequate” by EU standards. The lesson for the US and China is simple: The Europeans aren’t looking for compliance; they’re looking for assurances of compliance. As Fleetwood Mac once sang, “Tell me lies, tell me sweet little lies.;” Mark and I note the extreme enthusiasm with which the FBI used every high-tech tool to identify even people who simply trespassed in the Capitol on January 6. The tech is impressive, but we suspect a backlash is coming. Nick weighs in to tell me I’m wrong when I argue that we didn’t see these tools used this way against ANTIFA’s 2020 rioters.; Nick thinks we haven’t paid enough attention to the Accellion breach, and I argue that companies are getting a little too comfortable with aggressive lawyering of their public messages after a breach. One result is likely to be a new executive order about breach notification (and other cybersecurity obligations) for government contractors, I predict.; And Charles and I talk about the UK’s plan to take another bite out of end-to-end encryption services, essentially requiring them to show they can still protect kids from sexual exploitation without actually reading the texts and pictures they receive.; Good luck with that!; And more.; 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.

  • Episode 355: Can Editorial Middleware Cut the Power of the Big Platforms?
    by Steptoe & Johnson LLP on March 30, 2021 at 2:00 pm

    Our interview this week is with Francis Fukuyama, a fellow and teacher at Stanford and a renowned scholar and public intellectual for at least three decades. He is the coauthor of the Report of the Working Group on Platform Scale. It’s insightful on the structural issues that have enhanced the power of platforms to suppress and shape public debate. It understands the temptation to address those issues through an antitrust lens – as well as the reasons why antitrust will fail to address the threat that platform power poses to our democracy. As a solution, it proposes to force the platforms to divest their curatorial authority over what Americans (and the world) reads, creating a host of middleware suppliers who will curate consumers’ feeds in the way that consumers prefer. We explore the many objections to this approach, from first amendment purists to those, mainly on the left, who really like the idea of suppressing their opponents on the right. But it remains the one policy proposal that could attract support from left and right and also make a real difference.;In the news roundup, Dmitri Alperovich, Nick Weaver, and I have a spirited debate over the wisdom of Google’s decision to expose and shut down a western intelligence agency’s use of zero day exploits against terrorist targets. I argue that if a vulnerabilities equities process balancing security and intelligence is something we expect from NSA, it should also be expected of Google.; Nate Jones and Dmitri explore the slightly odd policy take on SolarWinds that seems to be coming from NSA and Cyber Command – the notion that the Russians exploited NSA’s domestic blind spot by using US infrastructure for their attack. That suggests that NSA wants to do more spying domestically, although no such proposal has surface. Nate, Dmitri, and I are united in thinking that the solution is a change in US law, though Dmitri thinks a know your customer rule for cloud providers is the best answer, while I think I persuaded Nate that empowering faster and more automatic warrant procedures for the FBI is doable, pretty much as we did with the burner phone problem in the 90s.; The courts, meanwhile, seem to be looking for ways to bring back a Potter Stewart style of jurisprudence for new technology and the fourth amendment: “I can’t define it, but I know it when it creeps me out.” The first circuit’s lengthy oral argument on how long video surveillance of public spaces can continue without violating the fourth amendment is a classic of the genre.; Dmitri and Nick weigh in on Facebook’s takedown of Chinese hackers using Facebook to target Uighurs abroad.; Dmitri thinks we can learn policy lessons from the exposure (and likely sanctioning) of the private Chinese companies that carried out the operation.; Dmitri also explains why CISA’s head is complaining about the refusal of private companies to tell DHS which US government agencies were compromised in SolarWinds. The companies claimed that their NDAs with, say, Treasury meant that they couldn’t tell DHS that Treasury had been pawned. That’s an all too familiar example of federal turf fights hurting federal cybersecurity.;In our ongoing feature, This Week in U.S.-China Decoupling, we cover the “Disaster in Alaska” evaluate the latest bipartisan bill to build a Western technology sphere to compete with China’s sector, note the completely predictable process ousting of Chinese telecom companies from the US market, and conclude that the financial sector’s effort to defy the gravity of decoupling will be a hard act to maintain.; Always late to embrace a trend, I offer Episode 1 of the Cyberlaw Podcast as a Non-Fungible Token to the first listener to cough up $150, and Nick explains why it would be cheap at a tenth the price, dashing my hopes of selling the next 354 episodes and retiring.; Nick and I have kind words for whoever is doxxing Russian criminal gangs, and I suggest offering the doxxer a financial reward (not just a hat tip in a Brian Krebs column. We fewer kind words have for the prospect that AI will soon be able to locate, track, and bankrupt problem gamblers.; I issue a rare correction to an earlier episode, noting that Israel may not have traded its citizens’ health data for first dibs on the Pfizer vaccine. It turns out that what was deidentified aggregate health data, Israel offered Pfizer which with proper implementation may actually stay aggregate and deidentified. And I offer my own hat tip to Peter Machtiger, for a student note in an NYU law journal that cites the Cyberlaw Podcast, twice!; And more!; 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.

  • Episode 354: The Xi-Hawley Global Consensus on Tech Platforms
    by Steptoe & Johnson LLP on March 22, 2021 at 2:00 pm

    Our news roundup for this episode is heavy on China and tech policy. And most of the news is bad for tech companies. Jordan Schneider tells us that China is telling certain agencies, not to purchase Teslas or allow them on the premises, for fear that Elon Musk’s famously intrusive record-keeping systems will give US agencies insight into Chinese facilities and personnel. Pete Jeydel says the Biden administration is prepping to make the same determination about Chinese communications and information technology, sending subpoenas to a number of Chinese tech suppliers. Meanwhile, Apple’s effort to protect its consumers from apps that collect personal data is coming under pressure from what Jordan sees as a remarkable alliance of normally warring companies, including Baidu, Tencent, and Bytedance. In addition to their commercial heft, all these companies likely have more juice in Beijing than Apple, so look for Tim Cook to climb down from his privacy high horse in China. (And Russia, where Apple has already agreed to let the Russian government specify the apps that must come preinstalled on iPhones sold in Russia.) Still, you can expect that Apple will continue to bravely refuse to cooperate with the FBI on terrorism and serious crime because that might set a precedent for cooperating with government demands in places like Russia and China (like them, I guess, but, you know, smaller).; But the episode gets its title from our discovery that President Xi’s critique of social media platforms sounds exactly like Sen. Josh Hawley’s. It is, in fact, the global bien pensant consensus, which has no dissenters to speak of now that the Chinese go to Davos. Jordan offers insights into why the Chinese government’s concerns about Big Tech might have its origins in something other than factional strife in Beijing.; David Kris and I dive into the final word from the intelligence community on foreign governments’ interference (via hacking or influence ops) in our 2020 election. The short answer is that the Russians and the Chinese didn’t hack our election machinery, in fact they didn’t even try. So, chest-beating over our 2020 cyber defenses may be a little like doing a victory lap after the other team forfeits. David and I manage to disagree about a few things, including the Hunter Biden laptop story, which I contend is now the principal disinformation campaign of 2020, as the media and Big Tech combined to throttle the story on spurious suspicions of a Russian hand in its provenance; David disagrees.; Pete Jeydel and Ishan Sharma, our interview guest, weigh in on the latest cyber conflict paper from the United Nations. We all agree that it could be worse, and that getting the General Assembly to accept it was an achievement at a time of lowered expectations for the UN.; The Cyber Space Solarium Commission is not going away, Pete and I agree, as witness the most recent report card issued to the Biden Administration by a Solarium staffer. In principle, that’s a good thing; commissions need to stick around and fight for their recommendations. But I can’t help complaining that some of the things the Commission is fighting for – Senate confirmation of a White House cyber director, and cutting DHS out of supply chain governance – are bad ideas.; We close with a recognition of the rafts of material supplied over the years to the podcast by the data protection authorities of Europe. They’ve mostly always been an example of what Texans call “all hat and no cattle” – better talkers than doers. But now their lack of serious implementation skills is catching up to them, as the companies they have penalized begin to pursue, and win, judicial appeals. That’s a trend likely to continue, and a good thing too.; Our interview is with Ishan Sharma, from the Federation of American Scientists, and author of “A More Responsible Digital Surveillance Future Multi-stakeholder Perspectives and Cohesive State & Local, Federal, and International Actions.”; If you like the episodes where I disagree profoundly with my guests, this one’s for you. I don’t think Ishan gets more than two minutes in before the critiquing begins. Still, he holds his own, defending a vision of surveillance technology that serves democratic ends and is for that reason supported and even subsidized in a global competition with the less democratic alternatives from China. I suspect that he’ll lose friends on both the left and the right as he tries to walk this line, but he’s clearly put a lot of thought into finding an alternative to technopessimism, and he defends it ably.; And more! 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.

  • Episode 353: The Former Lingerie Salesman Who Has Putin’s Knickers in a Twist
    by Steptoe & Johnson LLP on March 15, 2021 at 2:00 pm

    This week we interview Eliot Higgins, founder and executive director of the online investigative collective Bellingcat and author of We Are Bellingcat.; Bellingcat has produced remarkable investigative scoops on everything from Saddam’s use of chemical weapons to exposing the Russian FSB operatives who killed Sergei Skripal with Novichok, and, most impressive, calling a member of the FSB team that tried to kill Navalny and getting him to confess. Eliot talks about the techniques that make Bellingcat so effective and the hazards, physical and moral, that surround crowdsourced investigations.; In the news, Dave Aitel gives us the latest on the Exchange server compromise, and the reckless Chinese hack-everyone spree that was apparently triggered by Microsoft’s patch of the vulnerability.; Jamil Jaffer introduces us to the vulnerability of the week – dependency confusion, and the startling speed with which it is being exploited.; I ask Nate Jones and the rest of the panel what all this means for government policy. No one thinks that the Biden published cyberstrategy tells us anything useful. More interesting are two deep dives on cyber strategy from people with a long history in the field. We see Jim Lewis’s talk on the topic as an evolution in the direction of much harsher responses to Russian and Chinese intrusions. Dmitri Alperovich’s approach also has a hard edge, although he points out that the utter irresponsibility of the Chinese pawn-em-all tactic deserves an especially harsh response. I wonder why Cyber Command didn’t respond by releasing a worm that would install poorly secured shells on every Exchange server in China.; In other news, I blame poor (or rushed) DOD lawyering for the district court ruling that DOD couldn’t list Xiaomi as an entity aligned with the Chinese military. Jamil is more charitable both to DOD and the Judge who made the ruling, but he expects (or maybe just hopes) that the court of appeal will show DOD more deference.; Twitter, on the other hand, is praying that the Northern District of California suffers from full-blown Red State Derangement, as it asks the court there to enjoin a Texas Attorney General investigation into possible anticompetitive coordination in the Great Deplatforming of January 2021.; Nate gives us the basics. I observe that, to bring such a Hail Mary of a case, Twitter must deeply fear what its own employees were saying about the deplatforming at the time. Neither Nate nor I give Twitter a high probability of success. And even if it does succeed, red states are lining up new laws and regulatory initiatives for Silicon Valley, most notably Gov. DeSantis’s controversial effort to navigate section 230 and the first amendment.; Nate also provides a remarkably clear explanation of the sordid tale of European intelligence and law enforcement agencies trying to cut a special deal for themselves in the face of surveillance-hostile rulings from the EU’s Court of Justice. The agencies are right to want to avoid those foolish decisions, but leaving the US on the hook will only inflame trans-Atlantic relations.; In quick hits, Jamil and Dave talk us through Israel’s Unit 8200, the press on which offers a better cybersecurity VC alumni network than Stanford. Playing to type, I close with This Week in Sex Toy Security and immediately display my naivete. Wearables, who knew? But the security lapses in what Dave calls the internet of junk at least offers a new image to go with the concept of a man-in-the-middle attack.; And more! 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.

  • Episode 352: A Lot of Cybersecurity Measures that Don’t Work, and a Few that Might
    by Steptoe & Johnson LLP on March 8, 2021 at 3:00 pm

    We’re mostly back to our cybersecurity roots in this episode, for good reasons and bad. The worst of the bad reasons is a new set of zero-day vulnerabilities in Microsoft’s Exchange servers. They’ve been patched, Bruce Schneier tells us, but that seems to have inspired the Chinese government hackers to switch their campaign from Stealth to Promiscuous Mode. Anyone who hasn’t already installed the Microsoft patch is at risk of being compromised today for exploitation tomorrow.; Nick Weaver and Dmitri Alperovitch weigh in on the scope of the disaster and later contribute to our discussion of what to do about our ongoing cyberinsecurity. We’re long on things that don’t work. Bruce has pointed out that the market for software products, unfortunately, makes it entirely rational for industry to skimp on security while milking a product’s waning sales. Voluntary information sharing, has failed Dmitri notes. In fact, as OODA Loop reported in a devastating chart, information sharing is one of half a dozen standard recommendations made in the last dozen commission recommendations for cybersecurity. They either haven’t been implemented or they don’t work.; Dmitri is hardly an armchair quarterback on cybersecurity policy. He’s putting his money where his mouth is, in the form of the Silverado Policy Accelerator, which we discuss during the interview segment of the episode. Silverado is focused on moving the cybersecurity policy debate forward in tangible, sometimes incremental, ways. It will be seeking new policy ideas in cybersecurity, trade and the environment, and industrial policy. (The unifying theme is the challenge to the US posed by the rise of China and the inadequacy of our past response to that challenge.) But ideas are easy; implementation is hard. Dmitri expects Silverado to focus its time and resources both on identifying novel policy ideas and on ensuring those ideas are transformed into concrete outcomes.; Whether artificial intelligence would benefit from some strategic decoupling sparks a debate between me, Nick, Jane Bambauer, and Bruce, inspired by the final AI commission report. We shift from that to China’s version of industrial policy, which seems to reflect Chinese politics in its enthusiasm not just for AI and chips but also for keeping old leaders alive longer.; Jane and I check in on the debate over social media speech suppression, including the latest developments in the Facebook Oversight Board and the unusual bedfellows that the issue has inspired. I mock Google for YouTube’s noblesse oblige promise that it will stop suppressing President Trump’s speech when it no longer sees a threat of violence on the Right. And then I mock it again for its silly refusal to return search results for “BlueAnon”—the Right’s label for the Left’s wackier conspiracy theories.; In quick hits, Bruce and Dmitri explore a recent Atlantic Council report on hacked access as a service and what to do about it. Bruce thinks the problem (usually associated with NSO) is real and the report’s recommendations plausible. Dmitri points out that trying to stamp out a trade in zero days is looking at the wrong part of the problem, since reverse engineering patches is the source of most successful attacks, not zero days. Speaking of NSO, Nick reminds us of the rumors that they have been under criminal investigation and that the investigation has been revived recently.; Jane notes that Virginia has become the second state with a consumer data protection law, and one that resembles California’s CCPA.; Jane also notes the Israeli Supreme Court decision ending (sort of) Shin Bet’s use cellphone data for coronavirus contact tracing. Ironically, it turns out to have been more effective than most implementations of the Gapple privacy-crippled app.; Bruce and Dmitri celebrate the hacking of three Russian cybercrime forums for the rich array of identity clues the doxxing is likely to make available to researchers like Bellingcat (whose founder will be our interview guest on Episode 353 of the Cyberlaw Podcast. And More! 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.

  • Episode 351: When will Cyberattacks on the Grid Become the New Normal?
    by Steptoe & Johnson LLP on March 1, 2021 at 3:00 pm

    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 This leads us to Russia’s targeting of the US 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 to “beat China” economically.; Nick explains the most recent story on how China repurposed an NSA attack tool to use against US 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 Indi-based “grievance officers” to handle complaints. I am unable to resist snarking 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 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. 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! 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.

  • Episode 350: NSA’s Pre-History is a Love Story
    by Steptoe & Johnson LLP on February 22, 2021 at 3:00 pm

    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 features; the hackers showed great interest in Microsoft’s code. Dmitri predicts multiple executive orders from Anne Neuberger’s review, 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 imposing taxes on 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 US 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.; 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: US charges against three North Koreans who boosted national GDP appreciably with their hacks.; The ongoing Jones Day Doxtorsion.France’s discovery that GRU successfully hackers targeted Centreon servers for years, and Sultan Meghji’s departure from The Cyberlaw Podcast for some damn thing or other.; And more. 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.

  • Episode 349: This Is How They Tell Me the World Ends
    by Steptoe & Johnson LLP on February 16, 2021 at 3:00 pm

    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 wide-ranging, occasionally confrontational, 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 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 story, 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 prospect for such payment schemes is 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 US. I suggest that this is all part of restoring an Establishment of “authoritative narrative shapers,” in an internet age, noting that the critical question will be which publishers can attach themselves 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 pawned many companies by providing a public (and 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 “about 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 was wiretapping or hacking.; Finally, either The Cyberlaw Podcast has hit a new height 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. 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.

  • Episode 348: Well, Have You Ever Seen Dr. Octopus and Sen. Klobuchar Together?
    by Steptoe & Johnson LLP on February 8, 2021 at 3:00 pm

    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 collections 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 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 “CFIUS.”; More and more, Gus Hurwitz and I note, Big Tech CEOs are being treated in Washington like comic book supervillains. But have they met their match? Sen. Amy Klobuchar is clearly campaigning to be, if not Attorney General, then 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 revives the theme of Big Tech at bay, noting that Australia may start charging Google when it links to Australian news stories noting that Australia may start charging Google when it links to Australian news stories and that the new administration seems quite willing to join the rest of the world in imposing more taxes more taxes on tech profits.; David covers the flap between India and Twitter, which is refusing to follow an Indian order to suppress several Twitter accounts. That’s probably, I suggest, because there is 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 pulled 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. 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.

  • Episode 347: Cybersecurity – A British Perspective
    by Steptoe & Johnson LLP on February 1, 2021 at 3:00 pm

    The US has never really had a “cyberczar.” Arguably, though, the UK 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 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 US 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 LA 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. 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.

  • Episode 346: What Gives with Electric Grid Security?
    by Steptoe & Johnson LLP on January 25, 2021 at 3:00 pm

    It’s a story that has everything, except a reporter able 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 at the port to do a detailed breakdown and then issuing an executive order and follow-up rulings designed to cut Chinese products from the supply chain.; Yet the Biden administration 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 at least sketch the outlines of an irresistible story that will have to wait for a persistent journalist.; The SolarWinds story needs a new moniker, as the compromises spread beyond the scope of SolarWinds distributions to 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. The President 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 order requiring US 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 concentrates on convincing Secretary-designate Yellen to carry 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 – Transition Book – its persuasive for the Biden administration.; I predict that the statutorily mandated cybersecurity director will have to be subordinated to the Deputy National Security Adviser for cybersecurity for the office to be accepted in the administration.; 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 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 on his way to becoming as unpopular with European politicos as he is in the US.; And more. 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.

  • Episode 345: How COVID-Tracking Phone Apps Failed
    by Steptoe & Johnson LLP on January 19, 2021 at 3:00 pm

    We interview Jane Bambauer on the failure of COVID-tracking phone apps. She and Brian Ray are the author 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 privacy laws. 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, in order to avoid privacy-based political attacks. So, we have no one to blame but ourselves, and our delusional enthusiasm for privacy.; In the news roundup, suddenly face recognition isn’t toxic at all, since it can be used to identify pro-Trump protestors. And, of course, we have always been at war with Oceania. 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 last week’s episode about Silicon Valley speech suppression, you might be interested in seeing the proposal I came up with then, now elaborated into 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 administering the executive order allowing 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, but 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 confirmed 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 a few 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 can 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.; And more. 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.

  • Episode 344: China and the CIA: A Wilderness of Mirror Imaging
    by Steptoe & Johnson LLP on January 11, 2021 at 3:00 pm

    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 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 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 give us the latest on the attribution to Russia, the fine difference between attack and espionage, and the likelihood of direct or indirect 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 He previews some Biden appointments, and we talk about the surprising rise of career talent 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 they do. Speaking of Julian, he’s won another Pyrrhic victory in court – likely extending his imprisonment with another temporizing win.; And more. 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.

  • Episode 343: The Grim Lessons of the SolarWinds Breach
    by Steptoe & Johnson LLP on January 4, 2021 at 3:00 pm

    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 works if you’re actually, you know, engaged and defending, and Russia’s cyberspies managed (not surprisingly) to have hidden their achievement from NSA and Cyber Command.; More and better defense is another answer (not that it’s worked for 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 Beaumont, 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 indicted by the Justice Department. The bad news: I can’t help suspecting that China learned this trick from lefty ideologues in 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 to get YouTube to demonetize Americans using the platform to criticize China’s government.; Then 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.; And 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. 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 $550K over a data breach filing that was a few days late – 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 Trump’s DHS is leaving office with new warnings about the cyber risks of Chinese technology, this time touching on backdoors in TCL smart TVs and spillage from Chinese data services.; And more. 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.

  • Episode 342: Could European Privacy Law Protect American Child Molesters?
    by Steptoe & Johnson LLP on December 15, 2020 at 3:00 pm

    The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.Our interview is with Alex Stamos, who lays out a complex debate over child sexual abuse that’s now roiling Brussels. The application of European privacy standards and 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 they depend on automated monitoring of communications content, something that has 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 American kids. 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 the 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, Mark MacCarthy points out, the likelihood that the lawsuit will do something good on the privacy front is vanishingly small.; Russia’s SVR, heir of the KGB, is making headlines with a remarkably sophisticated and well-hidden cyberespionage attack 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 disciplined 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, chock full of cyber provisions and 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 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 telecoms companies. In one week, Jamil reports, the FCC launched proceedings to kick China Telecom out of the US infrastructure, reaffirmed its exclusion of Huawei from the same infrastructure, and adopted a “rip and replace” mandate for US providers who still have Chinese gear 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 the proposals for elaborate new regulation elaborate new regulation of digital intermediaries now working their way through — where else? – Brussels. I offer 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 administrations principles for US government use of artificial intelligence 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 at Google after threatening to quit and who now is crying racism. I report on the enactment of a modest 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.; And More! The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

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