The Cyberlaw Podcast Steptoe & Johnson LLP

Our interview in this episode is with Michael Daniel, formerly the top cybersecurity adviser in the Obama NSC and currently the CEO of the Cyber Threat Alliance. Michael lays out CTA’s mission. Along the way he also offers advice to the Biden cyber team – drawing in part on the wisdom of Henry Kissinger.; In the news roundup, Michael joins Jamil Jaffer and Nate Jones to mull the significance of Bruce Reed’s appointment to coordinate technology issues in the Biden White House. Reed’s tough take on Silicon Valley companies and section 230 may form the basis of a small-ball deal with Republicans on things like child sex abuse material, but none of us think a broader reconciliation on content moderating obligations is in the offing.; When it comes to regulating the tech sector, Brussels is a fount of proposals. The latest, unpacked by Jamil and Maury Shenk, is intended to build on the dubious success of GDPR in jumpstarting the EU’s technology industry.; Maury and I puzzle over exactly how a Russian divorcee won a court order allowing access to her estranged son’s Gmail account. Our guess: the court stretched a point to conclude that the son had consented.; Another day, another China-punishing measure from the Trump administration: Jamil explains the administration’s vision of a bloc of countries that will unite in resistance to China’s punitive trade retaliation against inconvenient Western countries, most notably Australian, now getting hit hard by China.; Meanwhile, Maury reports that the administration has identified nearly 90 Chinese companies that are too closely tied to the Chinese military for purposes of export control licenses. The only good news for US exporters is that the list eliminates some ambiguity about the status of some companies.; Maury also gives an overview of what most of us think is an oxymoron: Privacy in China. In fact, there is growing attention to protecting privacy at least from commercial companies. And harsh enforcement, as always, makes observers wonder “who did that company piss off?” before they wonder “what did that company do wrong?”; Maury also reports on the effort to revive Privacy Shield – and on just how little the negotiators have to work with.; Jamil comments on the ever-rising cost of cybersecurity, and possible implications for bank consolidation.; Nate reviews the privacy and security doubts about Amazon’s Sidewalk feature, which turns Alexa devices into neighborhood WiFi networks.; Maury and I not that the deadline for a TikTok sale is still a week away and maybe always will be.; Jamil wonders why ZTE asked the FCC to reconsider its exclusion of the company from the US telecoms infrastructure. The FCC order denying the request was not exactly a marketing triumph.; Jamil and I have fun asking how much snooping will go on in a proposed new fiber-optic network linking Saudi Arabia and Israel.; Nate is not surprised that France is pushing its tax for the (US) tech sector, but we debate whether the timing will turn out to be good for France or bad. I claim that White House ADHD is France’s best friend.; Maury and I try to figure out whether there’s a public policy case in favor of the Rivada plan to take over a bunch of DoD spectrum and rent out whatever is excess to DoD needs. Maybe there is, but we can’t find it.; 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.

This is my favorite story of the episode. David Kris covers a report from the Privacy and Civil Liberties Oversight Board on the enormous value that European governments get in fighting terrorism from the same American surveillance programs that European institutions have been fighting for twenty years to shut down. It's a delightful takedown of European virtue-signaling, and I hope the Biden Administration gives the PCLOB a new name and mission in honor of the report.; But we begin the news roundup with a review of the US-China tech relationship and how it might change under a Biden administration. The Justice Department has issued itself a glowing report card for its contribution to decoupling – the opening of new China-related counterintelligence case every 10 hours. I wonder how long this can go on before China starts arresting American businessmen – and kicks off another round of decoupling.; Speaking of decoupling, the latest legislation aimed at prison labor in China may be getting uncomfortably close to hitting Apple, which is quietly lobbying to water down a bill that most of us expect to pass soon by overwhelming majorities. Megan Stifel and I conclude that the provision that probably scares Apple most is an obligation to make representations about whether the company’s products include parts made with prison labor. That is increasingly difficult to figure out as China has limited audits for such purposes, putting Apple in an increasingly tight spot. Sympathy for Tim Cook is in short supply.; Speaking of legacy burnishing, the Trump White House has issued its own set of guidelines for federal agencies using artificial intelligence. Nick Weaver thinks it's actually not bad – light touch on most topics – which may be the nicest thing he's said about a product of this White House in four years. Sticking with AI, Nick comments on the prospect for putting humans in the loop of AI decision making. He thinks that's a recipe for lousy AI, and that campaigns to get a "Human in the Loop" for lethal systems have already lost the technology fight. At best, we can hope to have our poky old brains "on the loop" in future AI conflicts.; More good news: An IOT security bill that Megan and I both like (Megan more than I) and that Congress has passed and sent to the President for signature. It only sets standards for IOT that the federal government buys, but that's a good first step.; As a former NSAer, I explain "GCHQ envy" to David, and he provides the latest reason why it must be rampant at the Fort this year, as the agency introduces a new offensive cyber unit to take on organized crime and hostile states.; David also takes on the question whether there's a legal problem with the S. military buying location data from apps companies. Short answer: Nope.; Megan explains a now-patched Facebook Messenger bug that would have allowed hackers to listen in on users. Nick tells us why the FBI needed to hire robots to retrieve sensitive files. Megan gives us some staggering statistics about the prevalence of ransomware. Hint: if you thought COVID-19 was a pandemic, you ain't seen nothin' yet. I give a quick summary of the TikTok and WeChat ban litigation, where the government is unlimbering a host of new technical arguments.; I give a shoutout to Sean Joyce, whose principles led him to walk away from what is probably going to be serious money when Airbnb goes public. The company's leadership let him argue against giving data about individual users to the Chinese government before the users actually move in. But the debate ended when one of the execs opined, "We're not here to promote American values." That may not be a good look for Airbnb, but it is for Joyce, who left the company within weeks over the principle.; And, finally, it turns out that the FCC is in its last weeks of Trump legacy burnishing; facing a deadline in Januar

Another week, another Trump administration initiative to hasten the decoupling from China. As with MIRV warheads, the theory seems to be that the next administration can’t shoot them all down. Brian Egan lays out this week's initiative, which lifts from obscurity a DoD list of Chinese military companies and excludes them from US capital markets.; Our interview is with Frank Cilluffo and Mark Montgomery. Mark is Senior Fellow at the Foundation for Defense of Democracies and Senior Advisor to the congressionally mandated Cyberspace Solarium Commission. Previously, he served as Policy Director for the Senate Armed Services Committee under Senator John S. McCain—and before that served for 32 years in the US Navy as a nuclear trained surface warfare officer, retiring as a Rear Admiral in 2017. Frank is director of Auburn University's Director of Auburn University's McCrary Institute for Cyber and Critical Infrastructure Security. He served on the Cyberspace Solarium Commission and chaired the Homeland Security Advisory Council's subcommittee on economic security. We talk about the unexpected rise of the industrial supply chain as a national security issue. Both Frank and Mark were moving forces in two separate reports highlighting the issue, as was I. So, if we seem suspiciously agreed on important issues, it's because we are. Still, as an introduction to one of the surprise hot issues of the year, it's not to be missed.; After our interview of a Justice Department official on how to read Schrems II narrowly, it was only a matter of time. Charles Helleputte reviews the EDPB's effort to give more authoritative and less comfortable advice to US companies that want to keep relying on the standard contractual clauses. Still, the Justice Department take on the topic manages to squeak through without a direct hit from the privacy bureaucrats. Still, the EDPB (and the EDPS even more) makes clear that anyone following the DOJ's lead is in for an uphill fight. For those who want more of Charles's thinking on the topic, see this short piece.; Zoom has been allowed to settle an FTC proceeding for deceptive conduct (claiming that its crypto was end to end when it wasn’t, and more). Mark MacCarthy gives us details. I rant about the FTC's failure to ask any serious national security questions about a company that deserves some.; Brian brings us up to speed on TikTok. Only one of the Trump administration penalties remains unenjoined. My $50 bet with Nick Weaver that CFIUS will overcome judicial skepticism that IEEPA could not is hanging by a thread. Casey Stengel makes a brief appearance to explain how TikTok might win.; Brian also reminds us that export control policymaking is even slower and less functional on the other side of the Atlantic, as Europe tries, mostly ineffectively, to adopt stricter limits on exports of surveillance tech.; Mark and I admire the new Aussie critical-infrastructure cybersecurity initiative, mostly for its clarity if not for its political appeal.; Charles explains and I decry the enthusiasm of European courts for telling Americans what they can say and read on line. Apparently, we aren't allowed to post on Facebook that political censorship is what members of a fascist party tend to advocate; but don't worry about our liability; we can't pronounce the plaintiff's name. Faschy McFarschface, though, that I can pronounce.; So, in retrospect, how did we do in policing all the new cyberish threats to the 2020 election? Brian gives the government credit for preventing foreign interference. I question the whole narrative of foreign interference (other than the hack and dump operation against the DNC) in 2016 and 2020, noting how conveniently it serves Democratic messaging (Hillary only lost because of the Russians! Ignore Trump's corruption allegations because it's more Russian interference!). Mark and I wonder

This episode's interview with Dr. Peter Pry of the EMP Commission raises an awkward question: Is it possible that North Korea has already developed nuclear weapons that could cause the deaths of hundreds of millions of Americans by permanently frying the entire electrical infrastructure with a single high-altitude blast? And if he doesn't, could the sun accomplish pretty much the same thing? The common factor in both scenarios is EMP – electro-magnetic pulse. And we explore the problem in detail, from the capabilities of adversaries to the controversy that has pitted Dr. Pry and the EMP Commission against the power industry and the Energy Department, which are decidedly more confident that the US would withstand a major EMP event. And, for those disinclined to trust those sources, Dr. Pry offers a few tips on how to make it more likely that your systems will survive an EMP.; In the news, that the election turned out not to be hacked and not to be violence-plagued and not to be the subject of serious disinformation. That didn't stop Twitter and YouTube from overreacting when a leftie hate-object, Steve Bannon, used hyperbole ("heads on pikes") to express his unhappiness with Dr. Fauci. Really, Twitter’s Trust and Safety operation is so blinkered it can’t be fixed and should be nuked from orbit. Oh, wait, there goes my Twitter account and my YouTube career!; In legal tech news, Michael Weiner explains what's at stake in the Justice Department's antitrust lawsuit challenging Visa's $5.3 billion acquisition of Plaid. I wonder if that means the Department is out of antitrust-litigating ammo. And it might, except you can buy a lot of ammo with $1 billion worth of Silk Road bitcoins, now being claimed by the US. Sultan Meghji says the real question is why it took the US so long to lay claim to the coins.; Just when private companies have come up with plans to comply with California's privacy law, the voters there change everything. Well, maybe not everything. It looks, Dan Podair suggests, as though compliance with the new CPRA will mostly involve complying with the old CCPA plus a whole bunch more. I'm fascinated by the idea that the initiatives says, "Oh, and by the way, this law can't be amended except to make it more privacy friendly."; We bring Michael back to the conversation to brief us on the FTC's plan to bring antitrust case against Facebook using internal hearing procedure. Michael admits that some might call that a kangaroo court hearing; I suggest that LabMD's Mike Dougherty be called as an expert witness.; Sultan and I note the ongoing failure of media and rights groups to toxify facial recognition; now it's being used on "mostly peaceful" protestors who are apparently sweethearts when not punching cops. And it's hard to argue with using face recognition when it confirms a picture ID left behind in Lafayette Square.; Next, Sultan and I take on Toxification II, the campaign to make people believe that racist artificial Intelligence is a thing. Poorly trained AI is definitely a thing, but that doesn't make for the same kind of story.; Charles Helleputte analyzes the latest rumor that the EU is planning to prohibit end-to-end crypto. He notes that the EU is also pursuing more infrastructure security and wonders whether the two initiatives can be sustained together.; It turns out that other people on Zoom can, in theory and under the right conditions, guess what you're typing.  It's one more reason to be careful about webcams and security. I make the sort of cheap joke you’ve come to expect from me.; And more.

Our interview this week is a deep dive into the mess created by the EU Court of Justice in Schrems II – and some pretty good ideas for how companies might avoid the mess as proposed in a S. Government white paper. I interview Brad Wiegmann, Senior Counselor for the National Security Division at the US Department of Justice. We cover a host of arguments and new facts that may help companies navigate the wreckage of Privacy Shield and preserve the standard corporate clauses they’ve relied on for transAtlantic data transfers. And, yes, the phrase "hypocritical European imperialism" does cross my lips.; In the news, we can't let election eve pass without a look at all the election security threats and countermeasures now being deployed. I argue that the election security threat is the second coming of Y2K – a threat that is almost certainly an overhyped bogeyman, but one we can't afford to ignore. Jamil Jaffer and Pete Jeydel push back. Silicon Valley's effort to ensure that no one questions the legitimacy of a Biden victory also comes in for some criticism on my end – and is defended by Nate Jones. My candidate for flakiest Silicon Valley technonostrum is banning post-election political ads. That just guarantees that speech about the election will default to the biggest "organic" voices on the internet and to the speech police at each platform.; Confused about all the TikTok and WeChat litigation? The cheat sheet guide is that the US hasn't won a single case, and it's gone down hard in three separate opinions, the latest by US District Judge Beetlestone of Philadelphia. This could be Trump Derangement at work, but the fact is that the Chinese platforms have a plausible argument that Congress prohibited IEEPA bans that indirectly regulate distribution of speech. Banning a social platform might seem to fit that exception, but the result is crazy: it implies that TikTok could replay all the Russian election interference memes from 2016, and the government would be helpless to stop it. On appeal, we may see the courts taking a broader view of the equities. Or they may be tempted to say, "Well, Congress screwed this up, let Congress unscrew it." If Joe Biden wins the election, I can't imagine an issue he'd most want to keep off his plate.; Nate and I try to sum up what we learned from the social media speech suppression hearing on the Hill. Nate sees no common ground emerging despite wide unhappiness with Silicon Valley's role in regulating speech. I am more optimistic that a Congress looking to make progress could agree on first steps toward transparency in speech suppression practices on the platforms. The companies themselves seem to have decided that this is table stakes as they strive to avoid worse.; Nate gives us a quick view of the platform speech debate in Europe. My summary: Silicon Valley is already incentivized by EU law to oversuppress; now they're asking for immunity when they oversuppress, which means, of course, even less speech.; In quick hits, Pete talks about the ransomware threat to US health care. Nate explains the tensions between law enforcement and intelligence in Canada. And Pete tells us why fertility clinics are the latest national security concern for CFIUS.; 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.

In this episode, I interview Rob Knake, Senior Fellow at the Council on Foreign Relations, about his recent report, "Weaponizing Digital Trade – Creating a Digital Trade Zone to Promote Online Freedom and Cybersecurity." The theme of the report is what the US can salvage from the wreckage of the 1990s Magaziner Consensus about the democratizing and beneficent influence of Silicon Valley. I suggest that it really ought to be called "Digital Dunkirk," rather than invoking a swaggering "weaponization" theme.  Rob and I disagree about the details but not the broad outlines of his proposal.; In the news roundup, we finally have a Google antitrust complaint to pore over, and I bring Steptoe's Michael Weiner on to explain what the complaint means. Bottom line: it's a minimalist stub of a case, unlikely to frighten Google or produce structural changes in the market. Unless a new administration (or a newly incentivized Trump Justice Department) keeps adding charge after charge as the investigation goes on.; Speaking of Justice Department filings that may serve up less than meets the eye, DOJ has indicted GRU hackers for practically every bad thing that has happened on the internet in the last five years, other than the DNC hack. (In fact, I lost an unsaved Word document in 2017 that I'm hoping will be added to the charges soon.) The problem, of course, is that filing the charges is the easy part; bringing these state hackers to justice is unlikely in the extreme. If so, one wonders whether a policy that requires an indictment for all the cyberattacks on the US and its allies is a wise use of resources. Maury Shenk thinks it might be, at least in demonstrating US attribution capabilities, which are indeed impressive.; While we are covering questionably effective US retaliation for cyberattacks, Maury also notes that the Treasury Department has imposed sanctions on the truly unpronounceable TsNIIKhM, a Russian institute that seems to have developed industrial control malware that caused massive outages in Saudi Arabia and may have been planted in US energy systems as well. Again, no one doubts that heavy penalties should be imposed; the doubt is about whether these penalties will actually reach TsNIIKhM.; Nick Weaver celebrates the German government's dawn raid on spyware exporter, FinFisher. Maury expresses modest hope for Facebook's Oversight Board now that it has started reviewing content moderation cases. Color me skeptical.; Now that we’ve seen the actual complaint, Nick has his doubts about the Microsoft attack on Trickbot. It may be working, he says, but why is Microsoft doing something that the FBI could have done? I pile on, raising questions about the most recent legal theory Microsoft has rolled out in support of its proposed remedies.; Finally, in quick hits: I hum a few bars from "John Henry" in response to a Bloomberg story suggesting that CEOs are successfully beating the AI engines parsing their analyst calls and trading on the results. Maury debunks the parts of the story that made it fun, but not before I’ve asked whether Spinal Tap was decades ahead of its time in repackaging failure. Maury also notes the ho-hum upcoming Judiciary Committee testimony of Twitter and Facebook CEOs about their suppression of the New York Post "laptop from hell" Hunter Biden story. I'm much more interested in the Commerce Committee's subpoenaing of contacts between the campaigns and those companies. Because you just know the campaigns have a whole strategy for working the speech refs, and it would be an education to see how they do it. Nick and I congratulate Edward Snowden on the confirmation that he'll be in Russia forever. And I mock the Portland City Council as well as all the journalists who tried to make face recognition toxic – until it turned out that face recognition might help antifa dox the police. Suddenly we can't