Episodes
We open the episode with David Kris’s thoughts on the two-years-late CFIUS investigation of TikTok, its Chinese owner, ByteDance, and ByteDance’s US acquisition of the lip-syncing company Musical.ly. Our best guess is that this unprecedented reach-back investigation will end in a more or less precedented mitigation agreement. I cover the WhatsApp suit against NSO Group over the use of spyware on WhatsApp’s network. I predict that this is going to be a highwire act given the applicable...
Published 11/05/19
I talk about the photographs of Congresswoman Katie Hill and whether the rush to portray her as a victim of revenge porn raises questions about revenge porn laws themselves. Paul Rosenzweig, emboldened by twin tweets – from President Trump calling Never-Trumpers like him “human scum” and from Mark Hamill welcoming him to the Rebel Scum Alliance – takes issue with me. In a more serious vein, Brian Egan, Paul, and I dig deep into the roots of the battle over how to keep “emerging technology”...
Published 10/31/19
Our interview is with Alex Joel, former Chief of the Office of Civil Liberties, Privacy, and Transparency at the Office of the Director of National Intelligence. Alex is now at the American University law school’s Tech, Law, and Security Program. We share stories about the difficulties of government startups and how the ODNI carved out a role for itself in the Intelligence Community (hint: It involved good lawyering). We dive pretty deep on recent FISA court opinions and the changes they...
Published 10/22/19
Our interview is with Sultan Meghji, CEO of Neocova. We cover the large Chinese investment in quantum technology and what it means for the United States. It’s possible that Chinese physicists are even better than American physicists at extracting funding from their government. Indeed, it looks as though some quantum tech, such as the use of entangled particles to identify eavesdropping, may turn out to have dubious military value. But not all. Sultan thinks the threat of special purpose...
Published 10/15/19
Today’s episode opens with a truly disturbing bit of neocolonial judicial lawmaking from the Court of Justice of the European Union. The CJEU ruled that an Austrian court can order Facebook to take down statements about an Austrian politician. Called an “oaf” and a “fascist,” the politician more or less proved the truth of the accusations by suing to keep that and similar statements off Facebook worldwide. Trying to find allies for my proposal to adopt blocking legislation to protect the...
Published 10/08/19
In this episode I cross swords with John Samples of the Cato Institute on Silicon Valley’s efforts to disadvantage conservative speech and what to do about it. I accuse him of Panglossian libertarianism; he challenges me to identify any way in which bringing government into the dispute will make things better. I say government is already in it, citing TikTok’s People’s Republic of China-friendly “community standards” and Silicon Valley’s obeisance to European standards on hate speech and...
Published 10/04/19
In our 279th episode of The Cyberlaw Podcast, the Blockchain Group takes over the podcast. Host Alan Cohn is joined by Gary Goldsholle, Will Turner and Evan Abrams to discuss: The SEC has issued its second token-related no-action letter to Pocketful of Quarters, Inc., giving more guidance and opening a number of issues. The SEC has brought a double-headed complaint against ICOBOX, an entity that both conducted an initial coin offering (ICO) and facilitated ICOs for others. The US has...
Published 10/01/19
Joel Trachtman thinks it’s a near certainty that the World Trade Organization agreements will complicate U.S. efforts to head off an Internet of Things cybersecurity meltdown, and there’s a real possibility that a U.S. cybersecurity regime could be held to violate our international trade obligations. Claire Schachter and I dig into the details of the looming disaster and how to avoid it. In the news, Paul Rosenzweig analyzes the Ninth Circuit holding that scraping publicly available...
Published 09/17/19
Camille Stewart talks about a little-known national security risk: China’s propensity to acquire U.S. technology through the bankruptcy courts and the many ways in which the bankruptcy system isn’t set up to combat improper tech transfers. Published by the Journal of National Security Law & Policy, Camille’s paper is available here. Camille has enjoyed great success in her young career working with the Transformative Cyber Innovation Lab at the Foundation for Defense of Democracies, as a...
Published 09/09/19
In this bonus episode of the Cyberlaw Podcast, Alex Stamos of Stanford’s Freeman Spogli Institute talks about the Institute’s recent paper on the risk of Chinese social media interference with Taiwan’s upcoming presidential election. It’s a wide-ranging discussion of everything from a century of Chinese history to the reasons why WeChat lost a social media competition in Taiwan to a Japanese company. Along the way, Alex notes that efforts to identify foreign government election interference...
Published 09/06/19
And we’re back with an episode that tries to pick out some of the events of August that will mean the most for technology law and policy this year. Dave Aitel opens, telling us that Cyber Command gave the world a hint of what “defending forward” looks like with an operation that is claimed to have knocked the Iranian Revolutionary Guard’s tanker attacks for a long-lasting loop.  David Kris lifts the curtain on China’s approach to information warfare, driven by the Hong Kong protests and...
Published 09/04/19
Our guests this week are Paul Scharre from the Center for a New American Security and Greg Allen from the Defense Department’s newly formed Joint Artificial Intelligence Center. Paul and Greg have a lot to say about AI policy, especially with an eye toward national security and strategic competition. Greg sheds some light on the Defense Department’s activity, and Paul helps us understand how the military and policymakers are grappling with this emerging technology. But at the end of the day,...
Published 07/30/19
Today, I interview Frank Blake, who as CEO brought Home Depot through a massive data breach. Frank is a former co-clerk of mine; a former deputy secretary of energy; and the current host of Crazy Good Turns, a podcast about people who have found remarkable, even crazy, ways to help others. In addition to his insights on what it takes to lead an organization, Frank offers his views on how technology can transform nonprofit charitable initiatives. Along the way, he displays his characteristic...
Published 07/23/19
What is the federal government doing to get compromised hardware and software out of its supply chain? That’s what we ask Harvey Rishikof, coauthor of “Deliver Uncompromised,” and Joyce Corell, who heads the Supply Chain and Cyber Directorate at the National Counterintelligence and Security Center. There’s no doubt the problem is being admired to a fare-thee-well, and some evidence it’s also being addressed. Listen and decide! In the News Roundup, Nate Jones and I disagree about the Second...
Published 07/16/19
This week I interview Glenn Reynolds, of Instapundit and the University of Tennessee at Knoxville law school, about his new book, “The Social Media Upheaval.” In a crisp 64 pages, Glenn analogizes social media to a primeval city, where new proximity produces periodic outbreaks of diseases that more isolated people never experienced; traces social media’s toxicity to the desperate pursuit of engagement; and proposes remedies both for individual users and for society whole.  All that plus...
Published 07/09/19
The theme this week is China’s growing confidence in using cyberweapons in new and sophisticated ways, as the U.S. struggles to find an answer to China’s growing ambition to dominate technology. Our interview guest, Chris Bing of Reuters, talks about his deep dive story on Chinese penetration of managed service providers like HP Enterprise—penetration that allowed them access to hundreds of other companies that rely on managed service providers for most of their IT. Most chilling for the...
Published 07/02/19
Our interview guests are Dick Clarke and Rob Knake, who have just finished their second joint book on cybersecurity, The Fifth Domain. We talk about what they got right and wrong in their original book. There are surprising flashes of optimism from Clarke and Knake about the state of cybersecurity, and the book itself is an up-to-date survey of the policy environment. Best of all, they have the courage to propose actual policy solutions to problems that many others just admire. I disagree...
Published 06/25/19
We interview David Sanger, whose recent New York Times article on U.S. intrusions into the Russian grid was condemned as “a virtual act of treason” in a presidential tweet. Turns out that national security officials, contacted before the story ran, didn’t ask the Times to hold the story. Understandably. If you’re signaling to Putin that his grid will be at risk as long as he puts ours at risk, a front-page story in the New York Times is a pretty good way to get the word out. We’re starting...
Published 06/18/19
We kick off Episode 267 with Gus Hurwitz reading the runes to see whether a 50-year Chicago winter for antitrust plaintiffs is finally thawing in Silicon Valley. Gus thinks the predictions of global antitrust warming are overhyped. But he recognizes we’re seeing an awful lot of robins on the lawn: The rise of Margrethe Vestager in the EU, the enthusiasm of state AGs for suing Big Tech, and the piling on of Dem presidential candidates and the House of Representatives. Judge Koh’s Qualcomm...
Published 06/10/19
If you’ve lost the Germans on privacy, you’ve lost Europe, and maybe the world. That’s the lesson that emerges from my conversation with David Kris and Paul Rosenzweig about the latest declaration that the German interior minister wants to force messaging apps to decrypt chats. This comes at the same time that industry and civil society groups are claiming that GCHQ’s “ghost proposal” for breaking end-to-end encryption should be rejected. The paper, signed by all the social media giants,...
Published 06/03/19
Paul Rosenzweig leads off with an enduring and fecund feature in Washington these days: China Tech Fear. We cover the Trump administration’s plan to blacklist up to five Chinese surveillance companies, including Hikvision, for contributing to human rights violations against Uighurs in the Xinjiang province in China, the Department of Homeland Security’s rather bland warning that commercial Chinese drones pose a data risk for U.S. users, and the difficulty U.S. chipmakers are facing in getting...
Published 05/28/19
We begin this episode with a quick tour of the Apple antitrust decision that pitted two Trump appointees against each other in a 5-4 decision. Matthew Heiman and I consider the differences in judging styles that produced the split and the role that 25 years of “platform billionaires” may have played in the decision. Eric Emerson joins us for the first time to talk about the legal fallout from the latest tariff increases on Chinese products. Short version: Companies have some short-term...
Published 05/21/19
With apologies for the late post, Episode 263 of The Cyberlaw Podcast tells the sad tale of another U.S. government leaker who unwisely trusted The Intercept not to compromise its source. As Nick Weaver points out, The Intercept also took forever to actually report on some of the material it received. In other news, Brian Egan and Nate Jones agree that Israel broke no new ground in bombing the headquarters of Hamas’s rudimentary hacking operation during active hostilities. Nick and I dig...
Published 05/21/19
Has the Chinese government hired American lawyers to vet their cyberespionage tactics—or just someone who cares about opsec? Probably the latter, and if you’re wondering why China would suddenly care about opsec, look no further than Supermicro’s announcement that it will be leaving China after a Bloomberg story claiming that the company’s supply chain was compromised by Chinese actors. Nick Weaver, Joel Brenner and I doubt the Bloomberg story, but it has cost Supermicro a lot of sales—and...
Published 05/06/19
On Episode 261, blockchain takes over the podcast again. We dive right into the recent activity from the SEC, namely, the Framework for “Investment Contract” Analysis of Digital Assets and the No-Action Letter issued to TurnKey Jet, Inc. (TurnKey) for a digital token. Gary Goldsholle noted this guidance has been eagerly anticipated since July 2017 when the SEC first applied the Howey Test to a digital token with the DAO report. The current framework focuses primarily on the reasonable...
Published 04/30/19