The Cyberlaw Podcast

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's new policy for charging cases under the Computer Fraud and Abuse Act. It's a generally sensible extension of some positions the department has taken in the Supreme Court, including refusing to prosecute good faith security research or to allow companies to create felonies by writing use restrictions into their terms of service. Unless they also write those restrictions into cease and desist letters, I point out. Weirdly, the Justice Department will treat violations of such letters as potential felonies.

Mark gives a rundown of the new, Democrat-dominated Federal Trade Commission's first policy announcement—a surprisingly uncontroversial warning that the commission will pursue educational tech companies for violations of the Children's' Online Privacy Protection Act.

Maury Shenk explains the recent United Kingdom Attorney General speech on international law and cyber conflict.

Mark celebrates the demise of Department of Homeland Security's widely unlamented Disinformation Governance Board.

Should we be shocked when law enforcement officials create fake accounts to investigate crime on social media? The Intercept is, of course. Perhaps equally predictably, I'm not. Jane offers some reasons to be cautious—and remarks on the irony that the same people who don't want the police on social media probably resonate to the New York Attorney General's claim that she'll investigate social media companies, apparently for not responding like cops to the Buffalo shooting.

Is it "game over" for humans worried about artificial intelligence (AI) competition? Maury explains how Google Deep Mind's new generalist AI works and why we may have a few years left.

Jane and I manage to disagree about whether federal safety regulators should be investigating Tesla's fatal autopilot accidents. Jane has logic and statistics on her side, so I resort to emotion and name-calling.

Finally, Maury and I puzzle over why Western readers should be shocked (as we're clearly meant to be) by China's requiring that social media posts include the poster's location or by India's insistence on a "know your customer" rule for cloud service providers and VPN operators.

Download the 408th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to [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.

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 error to strategic blunder and on to historic disaster.

Speaking of products of more serious national security than Hikvision, Nate and I try to figure out why the effort to get Kaspersky software out of U.S. infrastructure is still stalled. I think the Commerce Department should take the fall.

In a triumph of common sense and science, the wave of laws attacking face recognition may be receding as lawmakers finally notice what's been obvious for five years: The claim that face recognition is "racist" is false. Virginia, fresh off GOP electoral gains, has revamped its law on face recognition so it more or less makes sense. In related news, I puzzle over why Clearview AI accepted a settlement of the ACLU's lawsuit under Illinois's biometric law.

Nate and I debate how much authority Cyber Command should have to launch actions and intrude on third country machines without going through the interagency process. A Biden White House review of that question seems to have split the difference between the Trump and Obama administrations.

Quelle surprise! Jamil concludes that the EU's regulation of cybersecurity is an overambitious and questionable expansion of the U.S. approach. He's more comfortable with the Defense Department's effort to keep small businesses who take its money from decamping to China once they start to succeed. Jordan and I fear that the cure may be worse than the disease.

I get to say I told you so about the unpersuasive and cursory opinion by United States District Judge Robert Pitman, striking down Texas' social media law. The Fifth Circuit has overturned his injunction, so the bill will take effect, at least for a while. In my view some of the provisions are constitutional and others are a stretch; Judge Pitman's refusal to do a serious severability analysis means that all of them will get a try-out over the next few weeks.

Jamil and I debate geofenced search warrants and the reasons why companies like Google, Microsoft and Yahoo want them restricted.

In quick hits,

• Jamil and I trade views on whether the Biden White House has effectively managed the lagging implementation of its landmark cybersecurity executive order.
• I note the important new protocol for implementing the Budapest Convention. On the principle that you can judge a policy by its enemies, this protocol is looking pretty good.
• Jamil highlights a study—by Europeans, no less—that suggests that General Data Protection Regulation (GDPR) is killing innovation in the Android app market.
• Jamil also flags a new study of the Chinese Offensive Cyber Landscape.
• And I suggest that the event with the biggest tech policy impact last week may have been none of these things; the real impact may be the meltdown in tech stocks generally and in cryptocurrency values in particular.

Download the 407th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to [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.

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 helps us revisit China's cyber policies after a long hiatus. Things have NOT gotten better for the Chinese government, Jordan reports. Stringent lockdowns in Shanghai are tanking the economy and producing a surprising amount of online dissent, but with Hong Kong's death toll in mind, letting omicron spread unchecked is a scary prospect, especially for a leader who has staked his reputation on dealing with the virus better than the rest of the world. The result is hesitation over what had been a strong techlash regulatory campaign.

Tatyana Bolton pulls us back to the Russian-Ukrainian war. She notes that Russia Is not used to being hacked at anything like the current scale, even if most of the online attacks are pinpricks. She also notes Microsoft's report on Russia's extensive use of cyberattacks in Ukraine. All that said, cyber operations remain a minor factor in the war.

Michael Ellis and I dig into the ODNI's intelligence transparency report, which inspired several differed takes over the weekend. The biggest story was that the FBI had conducted "up to" 3.4 million searches for U.S. person data in the pool of data collected under section 702 of the Foreign Intelligence Surveillance Act (FSA). Sharing a brief kumbaya moment with Sen. Ron Wyden, Michael finds the number "alarming or meaningless," probably the latter. Meanwhile, FISA Classic wiretaps dropped again in the face of the coronavirus. And the FBI conducted four searches without going to the FISA court when it should have, probably by mistake.

We can't stay away from the pileup that is Elon Musk's Twitter bid. Jordan offers views on how much leverage China will have over Twitter by virtue of Tesla's dependence on the Chinese market. Tatyana and I debate whether Musk should have criticized Twitter's content moderators for their call on the Biden laptop story. Jane Bambauer questions whether Musk will do half the things that he seems to be hinting.

I agree, if only because European law will force Twitter to treat European sensibilities as the arbiter of what can be said in the public square. Jane outlines recent developments showing, in my view, that Europe isn't exactly running low on crazy. A new court decision opens the door to what amounts to class actions to enforce European privacy law without regard for the jurisdictional limits that have made life easier for big U.S. companies. I predict that such lawsuits will also mean trouble for big Chinese platforms.

And that's not half of it. Europe's Digital Services Act, now nearly locked down, is the mother lode of crazy. Jane spells out a few of the wilder provisions – only some of which have made it into legal commentary.

Orin Kerr, the normally restrained and professorial expert on cyber law, is up in arms over a recent 9th Circuit decision holding that a preservation order is not a seizure requiring a warrant. Michael, Jane, and I dig into Orin's agita, but we have trouble sharing it.

In quick hits:

• Jane looks at a report expressing shock that Amazon uses data from Alexa smart speakers pretty much exactly the way you'd expect it to.
• Michael and I unpack the latest move in the prosecution of Uber's former Chief Security Officer, Joe Sullivan. Jane lays out what's different in Colorado's new privacy law. Spoiler: Just enough to make the likelihood of a federal privacy law with preemption look good to business.
• Michael and I wish the Biden administration well in its effort to get much-needed new authorities to address the risks of drone attacks here at home.

Download the 405th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to [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.

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 Charap have offered theirs: Shut down Russia's internet for a few hours just to show we can. It's better than no plan, but we're not ready to say it's the right plan, given the limited impact and the high cost in terms of exploits exposed.

Much more surprising, and therefore interesting, is the way Ukrainian mobile phone networks have become an essential part of Ukrainian defense. As discussed in a very good blog post, Ukraine has made it easy for civilians to keep using their phones without paying no matter where they travel in the country and no matter which network they find there. At the same time, Russian soldiers are finding the network to be a dangerous honeypot. Dave and I think there are lessons there for emergency administration of phone networks in other countries.

Gus Hurwitz draws the short straw and sums up the second installment of the Elon Musk v. Twitter story. We agree that Twitter's poison pill probably kills Musk's chances of a successful takeover. So what else is there to talk about? In keeping with the confirmation bias story, I take a short victory lap for having predicted that Musk would try to become the Rupert Murdoch of the social oligarchs. And Gus helps us enjoy the festschrift of hypocrisy from the Usual Sources, all declaring that the preservation of democracy depends on internet censorship, administered by their friends.

Scott takes us deep on pipeline security, citing a colleague's article for Lawfare on the topic. He thinks responsibility for pipeline security should be moved from Transportation Security Administration (TSA) to (FERC), because, well, TSA. The Biden administration is similarly inclined, but I'm not enthusiastic; TSA may not have shown much regulatory gumption until recently, but neither has FERC, and TSA can borrow all the cyber expertise it needs from its sister agency, CISA. An option that's also open to FERC, Scott points out.

You can't talk pipeline cyber security without talking industrial control security, so Scott and Gus unpack a recently discovered ICS malware package that is a kind of Metasploit for attacking operational tech systems. It's got a boatload of features, but Gus is skeptical that it's the best tool for causing major havoc in electric grids or pipelines. Also, remarkable: it seems to have been disclosed before the nation state that developed it could actually use it against an adversary. Now that's Defending Forward!

As a palate cleanser, we ask Gus to take us through the latest in EU cloud protectionism. It sounds like a measure that will hurt U.S. intelligence but do nothing for Europe's effort to build its own cloud industry. I recount the broader story, from subpoena litigation to the CLOUD Act to this latest counter-CLOUD attack. The whole thing feels to me like Microsoft playing both sides against the middle.

Finally, Dave takes us on a tour of the many proposals being launched around the world to regulate the use of Artificial Intelligence (AI) systems. I note that Congressional Dems have their knives out for face recognition vendor id.me. And I return briefly to the problem of biased content moderation. I look at research showing that Republican Twitter accounts were four times more likely to be suspended than Democrats after the 2020 election. But I find myself at least tentatively persuaded by further research showing that the Republican accounts were four times as likely to tweet links to sites that a balanced cross section of voters considers unreliable. Where is confirmation bias when you need it?

Download the 403rd Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to [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.

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 the resources to protect themselves from regulatory harm—and to make sure their competitors will be crushed by the burdens they bear. The one missing chapter in the mutual accommodation of Big Tech and Big Government, I argue, is a Rupert Murdoch figure—someone who will use his platform unabashedly to curry favor not from the left but from the right. It's an unfilled niche, but a moderately conservative Big Tech company is likely to find all the close regulatory calls being made in its favor if (or, more likely, when) the GOP takes power. If you think that's not possible, you missed the last week of tech news. Elon Musk, whose entire business empire is built on government spending, is already toying with occupying a Silicon Valley version of the Rupert Murdoch niche. His acquisition of nearly 10 percent of Twitter is an opening gambit that is likely to make him the man that conservatives hail as the antidote to Silicon Valley's political monoculture. Axios's complaint that the internet is becoming politically splintered is wildly off the mark today, but it may yet come true.

Nick Weaver brings us back to earth with a review of the FBI's successful (for now) takedown of the Cyclops Blink botnet—a Russian cyber weapon that was disabled before it could be fired. Nick reminds us that the operation was only made possible by a change in search and seizure procedures that the Electronic Frontier Foundation (EFF) and friends condemned as outrageous just a decade ago. Last week, he reports, Western law enforcement also broke the Hydra dark market. In more good news, Nick takes us through the ways in which bitcoin's traceability has enabled authorities to bust child sex rings around the globe.

Nick also brings us This Week in Bad News for Surveillance Software: FinFisher is bankrupt. Israeli surveillance software smuggled onto EU ministers' phones is being investigated; and Google has banned apps that use particularly intrusive data collection tools, outed by Nick's colleagues at the International Computer Science Institute.

Finally, Europe is building a vast network to do face recognition across the continent. I celebrate the likely defeat of ideologues who've been trying to toxify face recognition for years. And I note that one of my last campaigns at the Department of Homeland Security (DHS) was a series of international agreements that lock European law enforcement into sharing of such data with the United States. Defending those agreements, of course, should be a high priority for the State Department's on-again off-again new cyber bureau.

Download the 402nd Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to [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.

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 reporters who ought to know better. Adam Satariano, Paul Mozur and Aaron Krolik should be ashamed of themselves for writing a long story suggesting that Nokia did something wrong by selling Russia telecom gear that enables wiretaps. Since the same wiretap features are required by Western governments as a matter of law, Nokia could hardly do anything else. SORM and its abuses were all carried out by Russian companies. I suspect that, after wading through a boatload of leaked documents, these three (three!) reporters just couldn't admit there was no there, there.

Nate and I note the emergence of a new set of secondary sanctions targets as the Treasury Department begins sanctioning companies that it concludes are part of a sanctions evasion network. We also puzzle over the surprising pushback on proposals to impose sanctions on Kaspersky. If the Wall Street Journal is correct, and the reason is fear of cyberattacks if the Russian firm is sanctioned, isn't that a reason to sanction them out of Western networks?

Sultan and Maury remind us that regulating cryptocurrency is wildly popular with some, including Sen. Elizabeth Warren and the EU Parliament. Sultan remains skeptical that sweeping regulation is in the cards. He is much more bullish on Apple's ability to upend the entire fintech field by plunging into financial services with enthusiasm. I point out that it's almost impossible for a financial services company to maintain a standoffish relationship with the government, so Apple may have to change the tune it's been playing in the U.S. for the last decade.

Maury and I explore fears that the DMA will break WhatsApp encryption, while Nate and I plumb some of the complexities of a story Brian Krebs broke about hackers exploiting the system by which online services provide subscriber information to law enforcement in an emergency.

Speaking of Krebs, we dig into Ubiquiti's defamation suit against him. The gist of the complaint is that Krebs relied on a "whistleblower" who turned out to be the perp, and that Krebs didn't quickly correct his scoop when that became apparent. My sympathies are with Krebs on this one, at least until Ubiquiti fills in a serious gap in its complaint—the lack of any allegation that the company told Krebs that he'd been misled and asked for a retraction. Without that, it's hard to say that Krebs was negligent (let alone malicious) in reporting allegations by an apparently well-informed insider.

Maury brings us up to speed on the (still half-formed) U.K. online harms bill and explains why the U.K. government was willing to let the subsidiary of a Chinese company buy the U.K.'s biggest chip foundry. Sultan finds several insights in an excellent CNN story about the Great Conti Leak.

And, finally, I express my personal qualms about the indictment (for disclosing classified information) of Mark Unkenholz, a highly competent man whom I know from my time in government. To my mind the prosecutors are going to have to establish that Unkenholz was doing something different from the kind of disclosures that are an essential part of working with tech companies that have no security clearances but plenty of tools needed by the intelligence community. This is going to be a story to watch.

Download the 401st Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to [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.

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 administrative body with executive branch guarantees of independence and impartiality. We congratulate several old friends of the podcast who patched this solution together.

The Russian invasion of Ukraine, meanwhile, continues to throw off new tech stories. Nick Weaver updates us on the single most likely example of Russia using its cyber weapons effectively for military purposes—the bricking of Ukraine's (and a bunch of other European) Viasat terminals. Alex Stamos and I talk about whether the social media companies recently evicted from Russia, especially Instagram, should be induced or required to provide information about their former subscribers' interests to allow microtargeting of news to break Putin's information management barriers; along the way we examine why it is that tech's response to Chinese aggression has been less vigorous. Speaking of microtargeting, Paul gives kudos to the FBI for its microtargeted "talk to us" ads, only visible to Russian speakers within 100 yards of the Russian embassy in Washington. Finally, Nick Weaver and Mike mull the significance of Israel's determination not to sell sophisticated cell phone surveillance malware to Ukraine.

Returning to Europe-U.S. tension, Alex and I unpack the European Digital Markets Act, which regulates a handful of U.S. companies because they are "digital gatekeepers." I think it's a plausible response to network effect monopolization, ruined by anti-Americanism and the persistent illusion that the EU can regulate its way to a viable tech industry. Alex has a similar take, noting that the adoption of end-to-end encryption was a big privacy victory, thanks to WhatsApp, an achievement that the Digital Markets Act will undo in attempting to force standardized interoperable messaging on gatekeepers.

Nick walks us through the surprising achievements of the gang of juvenile delinquents known as Lapsus$. Their breach of Okta is the occasion for speculation about how lawyers skew cyber incident response in directions that turn out to be very bad for the breach victim. Alex vividly captures the lawyerly dynamics that hamper effective response. While we're talking ransomware, Michael cites a detailed report on corporate responses to REvil breaches, authored by the minority staff of the Senate Homeland security committee. Neither the FBI nor CISA comes out of it looking good. But the bureau comes in for more criticism, which may help explain why no one paid much attention when the FBI demanded changes to the cyber incident reporting bill.

Finally, Nick and Michael debate whether the musician and Elon Musk sweetheart Grimes could be prosecuted for computer crimes after confessing to having DDOSed an online publication for an embarrassing photo of her. Just to be on the safe side, we conclude, maybe she shouldn't go back to Canada. And Paul and I praise a brilliant WIRED op-ed proposing that Putin's Soviet empire nostalgia deserves a wakeup call; the authors (Rosenzweig and Baker, as it happens) suggest that the least ICANN can do is kill off the Soviet Union's out-of-date .su country code.

Download the 400th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to [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.

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 countries that have imposed sanctions, since their infrastructure makes a nice fat sitting-duck target, and may draw fire soon if American intelligence warnings prove true.

Meanwhile, Matthew Heiman reports, the effort to shore up defenses is leading to a cavalcade of paranoia. Has the UK defense ministry banned the use of WhatsApp due to fears that it's been compromised by Russia? Maybe. But WhatsApp has long had known security limitations that might justify downgrading its use on the battlefield. Speaking of ambiguity and mistrust, Telegram use is booming in Russia, Dave says, either because the Russians know how to control it or because they can't. Take your pick.

Speaking of mistrust, the German security agency has suddenly discovered that it can't trust Kaspersky products. Good luck finding them, Dave offers, since many have been whitelabeled into other company's software. He has limited sympathy for an agency that resolutely ignored U.S. warnings about Kaspersky for years.

Even in the absence of a government with an interest in subverting software, the war is producing products that can't be trusted. One open-source maintainer of a popular open-source tool turned it into a data wiper for anyone whose computer looks Belarussian or Russian. What could possibly go wrong with that plan?

Meanwhile, people who've advocated tougher cybersecurity regulation (including me) are doing a victory lap in the press about how it will bolster our defenses. It'll help, I argue, but only some, and at a cost of new failures. The best example being TSA's effort to regulate pipeline security, which has struggled to avoid unintended consequences while being critiqued by an industry that has been hostile to the whole effort from the start.

The most interesting impact of the war is in China. Jordan Schneider explores how China and Chinese companies are responding to sanctions on Russia. Jordan thinks that Chinese companies will follow their economic interests and adhere to sanctions—at least where it's clear they're being watched—despite online hostility to sanctions among Chinese digerati.

Matthew and I think more attention needs to be paid to Chinese government efforts to police and intimidate ethnic Chinese, including Chinese Americans, in the United States. The Justice Department for one is paying attention; it has arrested several alleged Chinese government agents engaged in such efforts.

Jordan unpacks China's new guidance on AI algorithms. I offer grudging respect to the breadth and value of the topics covered by China's AI regulatory endeavors.

Dave and I are disappointed by a surprise package in the FY 22 omnibus appropriations act. Buried on page 2334 is an entire smorgasbord of regulation for intelligence agency employees who go looking for jobs after leaving the intelligence community. This version is better than the original draft, but mainly for the intelligence agencies; intelligence professionals seem to have been left out in the cold when revisions were proposed.

Matthew does an update on the peanut butter sandwich spies who tried to sell nuclear sub secrets to a foreign power that the Justice Department did not name at the time of their arrest. Now that country has been revealed. It's Brazil, apparently chosen because the spies couldn't bring themselves to help an actual enemy of their country.

And finally, I float my own proposal for the nerdiest possible sanctions on Putin. He's a big fan of the old Soviet empire, so it would be fitting to finally wipe out the last traces of the Soviet Union, which have lingered for thirty years too long in the Internet domain system. Check WIRED magazine for my upcoming op-ed on the topic.

Download the 399th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to [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.

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 The Great Cyberwar that Wasn't could still make an appearance, citing Ciaran Martin's sober Lawfare piece.

David Kris tells us that Congress has, after a few false starts, finally passed a cyber incident reporting bill, notwithstanding the Justice Department's over-the-top histrionics in opposition. I wonder if the bill, passed in haste due to the Ukraine conflict, should have had another round of edits, since it seems to lock in a leisurely reg-writing process that the Cybersecurity and Infrastructure Security Agency (CISA) can't cut short.

Jane Bambauer and David unpack the first district court opinion considering the legal status of "geofence" warrants—where Google gradually releases more data about people whose phones were found near a crime scene when the crime was committed. It's a long opinion by Judge M. Hannah Lauck, but none of us finds it satisfying. As is often true, Orin Kerr's take is more persuasive than the court's.

Next, Paul Rosenzweig digs into Biden's cryptocurrency executive order. It's not a nothingburger, he opines, but it is a process-burger, meaning that nothing will happen in the field for many months, but the interagency mill will begin to grind, and sooner or later will likely grind exceeding fine.

Jane and I draw lessons from WIRED's "expose" on three wrongful arrests based on face recognition software, but not the "face recognition is Evil" lesson WIRED wanted us to draw. The arrests do reflect less than perfect policing, and are a wrenching view of what it's like for an innocent man to face charges that aren't true. But it's unpersuasive to blame face recognition for mistakes that could have been avoided with a little more care by the cops.

David and I highly recommend Brian Krebs's great series on what we can learn from leaked chat logs belonging to the Conti ransomware gang. What we learned from the Conti leaks. My favorite insight was the Conti member who said, when a company resisted paying to keep its files from being published, that "There is a journalist who will help intimidate them for 5 percent of the payout." I suggest that our listeners crowdsource an effort to find journalists who might fit this description. It might not be hard; after all, how many journalists these days are breaking stories that dive deep into doxxed databases?

Paul and I spend a little more time than it deserves on an ICANN paper about ways to block Russia from the network. But I am inspired to suggest that the country code .su—presumably all that's left of the Soviet Union—be permanently retired. I mean, really, does anyone respectable want it back?

Jane gives a lick and a promise to the Open App Markets bill coming out of the Senate Judiciary Committee. I alert the American Civil Liberties Union to a shocking porcine privacy invasion.

I discover that none of the other panelists is surprised that 15 percent of people have already had sex with a robot but all of them find the idea of falling in love with a robot preposterous.

Download the 398th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to [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.

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 social media about the Ukrainian war such as the Ghost of Kyiv, and wonder if fiction might do some good to keep up the morale of the besieged country.

Dave Aitel reminds us that despite the apparent lack of cyberattacks in the war, more might be going on under the surface. He also he tells us more about the internal attack that affected the Conti Ransomware gang when they voiced support for Russia. Nick opines that cryptocurrencies do not have the volume to serve as an effective way around the financial sanctions against Russia. Sultan Meghji agrees that the financial sanctions will accelerate the move away from the dollar as the world's reserve currency and is skeptical that a principles-based constraint will do much good to halt that trend.

A few things happened other than the war in Ukraine, including President Biden's first state of the union address. Gus notices that much of the speech was devoted to tech. He notes that the presence in the audience of Frances Haugen, the Facebook whistleblower, highlighted Biden's embrace of stronger online children's privacy laws and that the presence of Intel CEO Patrick Gelsinger gave the president the opportunity to pitch his plan to support domestic chip production.

Sultan and Dave discuss the cybersecurity bill that passed out of the Senate unanimously. It would require companies in critical sectors to report cyberattacks and ransomware to the Department of Homeland Security's Cybersecurity and Infrastructure Security Agency (CISA). They also analyze the concerns that companies have about providing information to the FBI. Dave thinks the bills that were discussed in this week's House Commerce hearing to hold Big Tech accountable, respond to wide-spread public concerns about tech's surveillance business model, but still he thinks they are unlikely to make it through the process to become law.

Gus says that Amazon's certification that it has responded to the Federal Trade Commission's inquiries about its proposed $6.5 billion MGM merger triggers a statutory deadline for the agency to act. It is not the company's fault, he says, that the agency has a 2-2 between Democrats and Republicans that will likely prevent them opposing the merger in time. I take the opportunity to note that the Senate Commerce committee sent the nominations of Alvaro Bedoya for the Federal Trade Commission and Gigi Sohn for the Federal Communications Commission to the Senate floor, but that it would likely be several months before the full Senate would act on the nominations.

Finally, Nick argues that certain measures in the European Commission's proposed digital identity framework, aiming to improve authentication on the web, would in practice have the opposite effect of dramatically weakening web security.

Download the 397th Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to [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.