The Cyberlaw Podcast

For those who think the podcast is best when we have a guest from the opposite end of the political spectrum, episode 35 should be a treat.  (We’re late this week, but it will be well worth the wait.) Our guest is Julian Sanchez, a senior fellow at the Cato Institute who studies surveillance and other issues at the intersection of technology and civil liberties.  He is a founding editor of the policy blog Just Security, and recently debated another of our guests, Orin Kerr, on Apple’s recent announcement that it would no longer be able to decrypt iPhones for law enforcement.    We dig into that issue in detail, asking such questions as how often encryption has actually stymied an investigation, whether “hacking” the phone is a substitute for help from the company, what this means for corporate users of iPhones, the implications for Apple (and Google) in other countries, and whether Google/Apple run a risk under current US law of lawsuits by prosecutors or by crime victims.

Our news roundup begins with some of the first good news NSA has received in months.  It looks as though Snowden fatigue may finally be setting in abroad as well as here.  Last week, Glenn Greenwald, Edward Snowden, and Internet multimillionaire Kim Dotcom teamed up to “close one of the Five Eyes” by driving New Zealand’s government out of office in national elections.  They combined strategic leaks, a Snowden attack on the prime minister as a liar, and Dotcom’s multimillion dollar campaign war chest.  Well, the elections are over, and the Anti-NSA Dream Team was trounced.  In less good news, NSA Director Mike Rogers admits to having missed more than he’d like about ISIS’s rise.  We debate how much the political furor over the agency contributes to these problems.

In other news, we discover that auto-forwarding someone else’s email is a wiretap – and why suing for a privacy violation is much better than seeking alimony.   Meanwhile, the Home Depot case sets a new record, and the Neiman Marcus data breach case gives comfort to class action defense lawyers all across the country.  The Texas Court of Criminal Appeals tells us that the constitution may protect upskirt photos.

And, finally, we speculate whether the whole privacy law thing will finally melt down over health data, especially now that concerns about HIPAA are stifling innovation by app companies, spurring a turf war between the FTC and HHS, and, most of all, getting in the way of rapid response by government agencies accused of wrongdoing.

Finally, we announce a new feature of the Steptoe Cyberlaw Podcast:   feedback.  Send your questions, suggestions for interview candidates or topics to [email protected].  If you’d like to leave a message by phone here’s the number: 202.862.5785. We may play your message on the podcast if it’s particularly insightful or entertainingly abusive.

Our guest this week is Dr. Phyllis Schneck, the Deputy Undersecretary for Cybersecurity for the Department of Homeland Security’s National Protection and Programs Directorate (NPPD).    She and Marc Frey, Senior Director in Steptoe’s DC office and former Chief of Staff at DHS’s Office of Policy Development, discuss the status of cybersecurity legislation and DHS’s highest cybersecurity priorities.

We begin the podcast with This Week in NSA, as newly released documents indicate that back in 2008, the US government threatened to fine Yahoo $250,000 a day if it failed to comply with an order for data under the PRISM program. 

We dive into the Alien Tort Statute suit that was dismissed against Cisco.  And, even though Stewart isn’t here this week, we give an update on his favorite topic – the right to be forgotten.   We also have a new competitor for the title of “strangest ruling against Google in a European court this year” – as a German court has ordered Google to provide more responsive customer support.  

Last week, we told you about how Yelp had prevailed in an extreme case claiming that the company suppresses bad reviews for its advertisers.   This week, California adopted a law that further protects customers’ ability to post negative reviews to Yelp and other sites.   

This week in data breaches: Home Depot confirms its breach, and the congressional reaction is predictable.  On a related front – in the newly minted “This Week in Judge Koh,” she finds that the Adobe breach victims have standing based on risk of future harm – we explain how this can be reconciled with Clapper and what its implications might be for future class actions.

Finally, tech companies again try to ramp up the pressure for ECPA reform, and in the Microsoft search warrant litigation in New York, Microsoft agreed to be held in contempt – we explain why.