In our 326th episode of the Cyberlaw Podcast, Stewart Baker interviews Lauren Willard, who serves as Counselor to the Attorney General. Stewart is also joined Nick Weaver (@ncweaver), David Kris (@DavidKris), and Paul Rosenzweig (@RosenzweigP).

Our interview this week focuses on section 230 of the Communications Decency Act and features Lauren Willard, Counselor to the Attorney General and a moving force behind the well-received Justice Department report on section 230 reform. Among the surprises: Just how strong the case is for FCC rule-making jurisdiction over section 230.

In the news, David Kris and Paul Rosenzweig talk through the fallout from Schrems II, the Court of Justice decision that may yet cut off all data flows across the Atlantic.

Paul and I speculate on the new election interference threat being raised by House Democrats. We also pause to praise the Masterpiece Theatre of intelligence reports on Russian cyber-attacks.

Nick Weaver draws our attention to a remarkable lawsuit against Apple. Actually, it’s not the lawsuit, it’s the conduct by Apple that is remarkable, and not in a good way. Apple gift cards are being used to cash out scams that defraud consumers in the US, and Apple’s position is that, gee, it sucks to be a scam victim but that’s not Apple’s problem, even though Apple is in the position to stop these scams and actually keeps 30% of the proceeds. I point out the Western Union – on better facts than that – ended up paying hundreds of millions of dollars in an FTC enforcement action – – and still facing harsh criminal sanctions.

Paul and David talk us through the 2021 National Defense Authorization Act, which is shaping up to make a lot of cyber-security law, particularly law recommended by the Cyber Solarium Commission. On one of its recommendations – legislatively creating a White House cyber coordinator – we all end up lukewarm at best.

David analyzes the latest criminal indictment of Chinese hackers, and I try to popularize the concept of crony cyberespionage.

Paul does a post-mortem on the Twitter hack. And speaking only for myself, I can’t wait for Twitter to start charging for subscriptions to the service, for reasons you can probably guess.

David digs into the story that gives this episode its title – an academic study claiming that face recognition systems can be subverted by poisoning the training data with undetectable bits of cloaking data that wreck the AI model behind the system. How long, I wonder, before Facebook and Instagram start a “poisoned for your protection” service on their platforms?

In quick takes, I ask Nick to comment on the claim that US researchers will soon be building an “unhackable” quantum Internet. Remarkably his response is both pithy and printable.

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 CyberlawPodcast@steptoe.com. 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.

Tomorrow (July 22), please join Steptoe’s Fred Geldon along with Katie Arrington, CISO for the DoD Acquisition Department and other key leaders at the Cybersecurity Maturity Model Certification (CMMC) Academy Virtual Summit. The summit will explore how prime contractors and subcontractors can get ready for CMMC assessment, as well as the international and legal aspects of the CMMC initiative.

Click here to read more and RSVP.

The big news of the week was the breathtakingly arrogant decision of the European Court of Justice, announcing that it would set the  rules for how governments could use personal data in fighting crime and terrorism.

Even more gobsmacking, the court decided to impose those rules on every government on the planet – except the members of the European Union, which are beyond its reach. Oh, and along the way the court blew up the Privacy Shield, exposing every transatlantic business to massive liability, and put the EU on a collision course with China over China’s most sensitive domestic security operations. This won’t end well.  It’s the CJEU’s version of our Court’s Dred Scott ruling. Paul Hughes helps me make sense of the decision.

In the interview, I talk to Darrell West, co-author of Turning Point—Policymaking in the Era of Artificial Intelligence. We mostly agree on where AI is already making a difference, where it’s still hype, and how it will transform war. Where we disagree is over the policy prescriptions for avoiding the worst outcomes. I disagree with the relentless focus of the book (and every other book in recent years) on the questionable claim of AI bias, and Darrell and I have a spirited disagreement over my claim that his prescription will hide numerical racial and gender quotas in every aspect of life that AI touches.

Iranian cyberspies make pretty good training videos, Sultan Meghji tells us, but they’re not taking any bows after leaving the videos exposed online.

If you thought Twitter’s content resembled middle school, wait until you see their security measures in action. Nate Jones has the details, but my takeaway is that middle school science projects are usually handled a lot more responsibly than Twitter’s “god mode” dashboard.

BIPA, the Illinois biometric privacy act, has inspired lawsuits against users of a database assembled to reduce AI bias. Mark MacCarthy explains that the law prohibits use of biometrics (like  pictures of your face) without consent. I observe that this makes BIPA the COVID-19 of privacy law.  Anyone who touches this database will be infected with liability, at least if the plaintiff’s surprisingly plausible theory holds up.

Sultan reminds us that the PRC has now been caught twice requiring companies in China to use tax software with built-in malware. You know what they say: “Once is happenstance. Twice is coincidence. Three times is enemy action.”  I don’t think we’ll need to wait long to see number three.

Nate gives us a former government lawyer’s take on the CIA’s new authority to conduct cyber covert action. (YahooLawfare) Ordinarily he’d be skeptical of keeping those decisions away from the White House, but in this case, he’ll make an exception. My take: If unshackling the CIA has produced the APT34 and FSB hacks and data dumps, what’s not to like?

In short hits, I mock the Justice Department spokesperson who claimed that Ghislaine Maxwell was engaged in “a misguided effort to evade detection” when she wrapped her cellphone in tin foil. And Mark and I cross swords over Reddit’s capture by the Intolerant Left. You make the call: When Reddit declares that exposing fake hate crimes as hoaxes is a form of hate speech, is that anecdotal evidence of left-wing bias or stone-cold proof of epistemic closure?


 

Download the 325th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunesGoogle PlaySpotifyPocket 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 CyberlawPodcast@steptoe.com. 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.

Our interview is with Bruce Schneier, who has coauthored a paper about how to push security back up the Internet-of-things supply chain: The reverse cascade: Enforcing security on the global IoT supply chain.  His solution is hard on IOT affordability and hard on big retailers and other middlemen, who will face new liabilities, but we conclude that it’s doable. In fact, the real question is who’ll get there first, a combination of DHS’s CISA and the FTC or the California Secretary of State.

In the News Roundup Megan Stifel (@MeganStifel), Nate Jones (@n8jones81), and David Kris (@DavidKris) and I discuss how it must feel to TikTok as though the shot clock is winding down.  Administration initiatives that could hurt or kill its US business are proliferating.  Nate Jones, Megan Stifel, and I explore the government’s options. The most surprising, and devastating, of them is a simple ban on TikTok as a threat to national security or the security of Americans. That’s the standard under Executive Order 13873, a brand-new (the regs aren’t yet final) implementation of the well-tested tools under IEEPA. A straightforward application of IEEPA remedies would cut TikTok off from the US market, I argue.

Meanwhile, another little-advertised but equally sweeping rule for government contractors is on its way to implementation. It will deny federal contracts, not just to certain Chinese products but to contractors who themselves use those products.

Not to be outdone by the contracting officers, the Federal Trade Commission and Justice Department are attacking TikTok from a different direction – investigating claims that the company failed to live up to last year’s consent decree on the privacy of children using the app.

And, on top of everything, private sector CISOs are drawing a bead on the app, as Wells Fargo and (briefly) Amazon tell their employees to take the app off their work phones.

It’s no surprise in the face of these developments that TikTok is working overtime to decouple itself in the public’s mind from China, including going so far as to join the rest of Silicon Valley in signaling discomfort with Hong Kong’s new security rules (and ruler). Megan and I question whether this strategy will succeed.

If Chief Justice Roberts were running for office, he couldn’t have produced a better result than the Court’s latest tech decision – upholding most of a law that makes  robocalls illegal while striking down the one part of the law that authorizes robocalls – for collection of government debt.  David Kris explains.

Nate unpacks a new Florida DBA privacy law prohibiting life, disability and long-term care insurance companies from using genetic tests for coverage purposes. I express skepticism.

Nate also explains the mysteriously quiet launch of the UK-US Bilateral Data Access Agreement. Four years in the making, and neither side wanted to announce that it was in effect – what’s with that, I wonder?

FBI Director Wray gives a compelling speech on the counterintelligence and economic espionage threat from China.

He says the bureau opens a new such case every ten hours.  And right on schedule come charges against a professor charged with taking $4M in US grant money to conduct research — for China.

David and I puzzle over the surprisingly lenient sentence handed to a former Yahoo engineer for hacking the personal accounts of more than 6,000 Yahoo Mail users to search to collect sexually explicit images and videos.

I out Reddit as a particularly fanatical convert to SJW orthodoxy in speech suppression, as the service apparently tells its moderators that it’s hate speech to post stories or video showing a person of color as the aggressor in a confrontation.

And Nate closes us out with a bottomless feature on all the problems faced by technological contact tracing.

                                                                                                                                  

Download the 324th 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 CyberlawPodcast@steptoe.com. 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.

In the News Roundup, Dave Aitel (@daveaitel), Mark MacCarthy (@Mark_MacCarthy), and Nick Weaver (@ncweaver) and I discuss how French and Dutch investigators pulled off the coup of the year this April, when they totally pwned a shady “secure phone” system used by massive numbers of European criminals. Nick Weaver explains that hacking the phones of Entrochat users gave them access to large troves of remarkably candid criminal text conversations. And, I argue, it shows the flaw in the argument of encryption defenders. They are right that restricting Silicon Valley encryption will send criminals to less savory companies, but those companies are inherently more prone to compromise, as happened here.

The EARN IT Act went from Washington-controversial to Washington consensus in the usual way.  It was amended into mush. Indeed, there’s an argument that, by guaranteeing nothing bad will happen to social platforms who adopt end-to-end encryption, the Leahy amendment has actually made e2e crypto more attractive than it is today. That’s my view, but Mark MacCarthy still thinks the twitching corpse of EARN IT might cause harm by allowing states to adopt stricter rules for liability in the context of child sex abuse material. He also thinks that it won’t pass.  I have ten bucks that says it will, and by the end of the year.

Dave Aitel, new to the news roundup, discusses the bad week TikTok had in its second biggest market.  India has banned the app. And judging from some of the teardowns of the code, its days may be numbered elsewhere as well. Dave points to reports that Angry Birds was used to collect user information as well when it was at the height of its popularity. We wax philosophic about why advertising and not national security agencies are breaking new ground in building our Brave New World.

Mark once worked for a credit card association, so he’s the perfect person to comment on claims that being labeled a “hate speech” platform won’t just get you boycotted in Silicon Valley but by the credit card associations as well. And once we’re in this vein, we mine it, covering Silicon Valley’s concerted campaign to make sure Donald Trump can’t repeat 2016 in 2020. He’s been deplatformed at Twitch this week for something he said in 2016.  And Reddit dumped his enormous subreddit for failure to observe its censorship rules – which I point out are designed to censor only the majority.. I argue it’s time to defund the speech police.

Nick takes us to a remarkable Washington story. He thinks it’s about a questionable Trump administration effort to redirect $10 million in “freedom tool” funding from cryptolibertarians to Falun Gong coders. I point out that US government funds going to the cryptolibertarians were paying the salary of the notorious Jake Applebaum and buying tools like TAILS that have protected appalling sextortionist criminals. Really, the money would be better spent if we burned it on cold days on the Mall to warm the homeless.

Returning to This Week in Hacked Phones, Nick explains the latest man in the middle attack that requires the phone user to do nothing but visit a website. Any website.  Dave sets out the strikingly sophisticated and massive international surveillance system now aimed by China at Uighers all around the world.  And Nick warns of two bugs that, if you haven’t spent the weekend fixing, may already be exploited on your network.

In quick hits, I mock MIT for thinking that “pedophile” is a racial or ethnic slur but confess that its researchers know more bad words than I do.  What is a c****e, anyway? If MIT was cheating on the number of asterisks, we have an idea, but that’s cheating.  If you know, please don’t tweet the answer; send it to our email.

                                                                                                                                   

Download the 323rd 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 @stewartbaker with on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. 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.

 

 

 

For the first time in twenty years, the Justice Department is finally free to campaign for the encryption access bill it has always wanted.  Sens. Lindsey Graham (R-S.C.), Tom Cotton (R-Ark.), and Marsha Blackburn (R-Tenn.) introduced the Lawful Access To Encrypted Data Act. (Ars Technica, Press Release) As Nick Weaver points out in the news roundup, this bill is not a compromise. It’s exactly what DOJ wants – a mandate that every significant service provider or electronic device maker build in the ability to decrypt any data it has encrypted when served with a lawful warrant.

In our interview, Under Secretary Chris Krebs, head of the Cybersecurity and Infrastructure Security Agency, drops in for a chat on election security, cyberespionage aimed at coronavirus researchers, why CISA needs new administrative subpoena authority, the value of secure DNS, and how cybersecurity has changed in the three years since he took his job.

Germany’s highest court has ruled that the German competition authority can force Facebook to obtain user consent for internal data sharing, to prevent abuse of a dominant position in the social networking market. Maury Shenk and I are dubious about the use of competition law for privacy enforcement. Those doubts could also send the ruling to a still higher forum – the European Court of Justice.

You might think that NotPetya is three years in the rear-view mirror, but the idea of spreading malware via tax software, pioneered by the GRU with NotPetya, seems to have inspired a copycat in China. Maury reports that a Chinese bank is requiring foreign firms to install a tax app that, it turns out, has a covert backdoor. (Ars Technica, Report, NBC)

The Assange prosecution is looking less like a first amendment case and more like a garden variety hacking conspiracy thanks to the government’s amended indictment. (DOJ, Washington Post) And, as usual, the more information we have about Assange, the worse he looks.

Jim Carafano, new to the podcast, argues that face recognition is coming no matter how hard the press and NGOs work to demonize it. And working hard they are. The ACLU has filed a complaint against the Detroit police, faulting them for arresting the wrong man based on a faulty match provided by facial recognition software. (Ars Technica, Complaint)

The Facebook advertiser moral panic is gaining adherents, including Unilever and Verizon, but Nick and I wonder if the reason is politics or a collapse in ad budgets. Whatever the cause, it’s apparently led Mark Zuckerberg to promise more enforcement of Facebook’s policies.

In short hits, the U.S. Department of Homeland Security sent a letter to chief executives of five large tech companies asking them to ensure social media platforms are not used to incite violence. Twitter has permanently suspended the account of leak publisher DDoSecrets. (Ars Technica, Cyber Scoop). Rep. Devin Nunes (R-Calif.) was told what he must have known when he filed his case: he cannot sue Twitter for defamation over tweets posted by a parody account posing as his cow. (Ars Technica, Ruling) Nick explains why it’s good news all around as Comcast partners with Mozilla to deploy encrypted DNS lookups on the Firefox browser. And Burkov gets a nine-year sentence for his hacking.

 


 

Download the 322nd 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 CyberlawPodcast@steptoe.com. 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.

This is the week when the movement to reform Section 230 of the Communications Decency Act got serious. The Justice Department released a substantive report suggesting multiple reforms. I was positive about many of them (my views here). Meanwhile, Sen. Josh Hawley (R-MO) has proposed a somewhat similar set of changes in his bill, introduced this week. Nate Jones and I dig into the provisions, and both of us expect interest from Democrats as well as Republicans.

The National Security Agency has launched a pilot program to provide secure DNS resolver services for US defense contractors. If that’s such a good idea, I ask, why doesn’t everybody do it, and Nick Weaver tells us they can. Phil Reitinger’s Global Cyberalliance offers Quad9 for this purpose.

Gus Hurwitz brings us up to date on a host of European cyberlaw developments, from terror takedowns (Reuters, Tech Crunch) to competition law to the rise of a disturbingly unaccountable and self-confident judiciary. Microsoft’s Brad Smith, meanwhile, wins the prize for best marriage of business self-interest and Zeitgeist in the twenty-first century.

Hackers used LinkedIn’s private messaging feature to send documents containing malicious code which defense contractor employees were tricked into opening. Nick points out just what a boon LinkedIn is for cyberespionage (including his own), and I caution listeners not to display their tats on LinkedIn.

Speaking of fools who kind of have it coming, Nick tells the story of the now former eBay executives who have been charged with sustained and imaginatively-over-the-top harassment of the owners of a newsletter that had not been deferential to eBay. (Wired, DOJ)

It’s hard to like the defendants in that case, I argue, but the law they’ve been charged under is remarkably sweeping. Apparently it’s a felony to intentionally use the internet to cause substantial emotional distress. Who knew? Most of us who use Twitter thought that was its main purpose. I also discover that special protections under the law are extended not only to prevent internet threats and harassment of service animals but also horses of any kind. Other livestock are apparently left unprotected. PETA, call your office.

Child abusers cheered when Zoom buckled to criticism of its limits on end-to-end encryption, but Nick insists that the new policy offers safeguards for policing misuse of the platform. (Ars Technica, Zoom)

I take a minute to roast Republicans in Congress who have announced that no FISA reauthorization will be adopted until John Durham’s investigation of FISA abuses is done, which makes sense until you realize that the FISA provisions up for reauthorization have nothing to do with the abuses Durham is investigating. So we’re giving international terrorists a break from scrutiny simply because the President can’t keep the difference straight.

Nate notes that a story previewed in April has now been confirmed: Team Telecom is recommending the blocking of a Hong Kong-US undersea cable over national security concerns.

Gus reminds us that a bitter trade fight between the US and Europe over taxes on Silicon Valley services is coming. (Politico, Ars Technica)

Nick and I mourn the complete meltdown of mobile phone contact tracing. I argue that from here on out, some portion of coronavirus deaths should be classified as mechanogenic (caused by engineering malpractice). Nick proposes instead a naming convention built around the Therac-25.

And we close with a quick look at the latest data dump from Distributed Denial of Secrets. Nick thinks it’s strikingly contemporaneous but also surprisingly unscandalizing.


 

Download the 321st 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 CyberlawPodcast@steptoe.com. 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.

Our interview this week is with Chris Bing, a cybersecurity reporter with Reuters, and John Scott-Railton, Senior Researcher at Citizen Lab and PhD student at UCLA. John coauthored Citizen Lab’s report last week on BellTroX and Indian hackers for hire, and Chris reported for Reuters on the same organization’s activities – and criminal exposure – in the United States. The most remarkable aspect of the story is how thoroughly normalized hacking legal and lobbying opponents seems to have become, at least in parts of the US legal and investigative ecosystem. I suggest that instead of a long extradition battle, the US give the head of BellTroX a ticket to the US and a guaranteed income for the next few years as a witness against his customers.

In the news roundup, Nick Weaver tells the remarkable story of how Facebook funded an exploit aimed at taking down a particularly vile online abuser of young girls who was nearly invulnerable because he was using TAILS, the secure, thumb drive-based communication system (Vice, Gizmodo). This is a great story because it really doesn’t fit into any of the stilted narratives into which most internet security stories are usually jammed.

Nick also notes Big Tech’s pledge to do more to stop child abuse online. I suggest that only Dr. Evil would be impressed by the amounts of money being invested in the campaign.

Well, another week, another Zoom bomb.  Now the company is taking heat because it terminated several Tiananmen Square commemorative Zoom sessions after China complained (NYT, Zoom). David Kris and I don’t think Zoom had much choice about cutting off the Chinese customers.  Terminating the US account holder who organized a session, however, was a bad move – and one that’s since been corrected by the company.

Nate Jones and I square off again for Round 545 on content moderation, spurred this time by reports that Sen. Josh Hawley is drafting legislation inspired by the Trump Administration’s Section 230 EO. Meanwhile several Republican senators are pushing the FCC to act on the order. Nate and I find rare bipartisan common ground on the idea that Congress should require social media companies to take down foreign government online messaging – and maybe work with the US government to stop it at the source.

David reports on a fairly (and deservedly) obscure EU cloud independence project. It seems to have been embraced by Microsoft, which I accuse of going full AT&T – embracing government regulation as a competitive differentiator. As if to prove my point, Microsoft announces that it’s getting out of the business of doing facial recognition for the police – until it can persuade Congress to regulate its competitors.

Why are spies targeting vaccine research? Nate highlights the excellent Risky Biz newsletter analysis of what drives COVID-19 cyberespionage.

Nick flags the potential significance of ARM wrestling, as the UK chip designer ARM fights its JV partner for control of its Chinese joint venture. Nick also assigns a “moderate” threat label to the latest Universal Plug n Pwn exploit. It’s only moderate because there are so many pwned IOT devices already in a position to DDOS targets of opportunity.

In quick hits, I note that Israel has halted its controversial use of intelligence capabilities to monitor the spread of the coronavirus, but the government reserves the right to revive monitoring if a second wave shows up (JPost, Yahoo). Poor Brewster Kahle is looking like an internet hippie who fell asleep at Woodstock and woke up at Altamont. The Internet Archive is ending its program of offering free, unrestricted copies of e-books, but the publishers who sued over that program may decide to keep suing until they’ve broken his entire “digital library” model, and maybe the Internet Archive as well (NYT, Ars Technica). That would be a shame. Finally, you can have a thousand talents, but honesty may not be one of them. Charles Lieber, the Harvard University professor arrested for lying about his lucrative China contracts, has now been indicted on false statement charges.

 


 

Download the 320th 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 CyberlawPodcast@steptoe.com. 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.

 

 

Our interview with Ben Buchanan begins with his report on how artificial intelligence may influence national and cybersecurity. Ben’s quick takes: better for defense than offense, and probably even better for propaganda. The best part, in my view, is Ben’s explanation of how to poison the AI that’s trying to hack you – and the scary possibility that China is already poisoning Silicon Valley’s AI.

By popular request, we’ve revisited a story we skipped last week to do a pretty deep dive on the decision (for now) that Capital One can’t claim attorney-client work product privilege in a Mandiant intrusion response report prepared after its breach. Steptoe litigator Charles Michael  and I talk about how IR firms and CISOs should respond to the decision, assuming it stands up on appeal.

Maury Shenk notes the latest of about a hundred warnings, this time from Christopher Krebs, the director of DHS’s cybersecurity agency and the head of Britain’s GCHQ, that China’s intelligence service ­– and every other intelligence service on the planet – seem to be targeting COVID-19 research. I ask whether sauce for the Western goose should be sauce for the Chinese gander.

Maury takes us through the week in internet copyright fights. Ideological copyright enforcement meets the world’s dumbest takedown bots as Twitter removes a Trump campaign video tribute to George Floyd due to a copyright claim. The video is still available on Trump’s YouTube channel.

We puzzle over Instagram’s failure to provide a license to users of its embedding API. The announcement could come as an unwelcome surprise to users who believed that embedding images, rather than hosting them directly, provides insulation against copyright claims.

Finally, much as I love Brewster Kahle, I’m afraid that Kahle’s latest move marks his transition from internet hippie to “holy fool” – and maybe a broke one. His Internet Archive, the online library best known for maintaining the Internet Wayback Machine makes scanned copies of books available to the public on terms that resemble a library’s. The setup was arguably legal – and no one was suing – until Kahle decided to let people download more books than his company had paid for. Now he faces an ugly copyright lawsuit.

Speaking of ugly lawsuits, Mark MacCarthy and Paul Rosenzweig comment on the Center for Democracy and Technology’s complaint that Trump violated tech companies’ right to free speech with his executive order on section 230. (ReutersNYT) I question whether this lawsuit will get far.

This Week in Working the Ref: Facebook and Mark Zuckerberg are facing criticism from users, competitors, civil rights organizations for failing to censor the people those groups hate. (Ars TechnicaPolitico). Meanwhile, Snap scores points by ending promotion of Trump’s account after concluding his tweets incited violence. I can’t help wondering what Snap would have done with FDR’s “day that will live in infamy” speech.

Where is Nate Jones when you need him?  He would love this story: A Twitter user sacrificed a Twitter account to show that Trump is treated differently than others by the platform. Of course, the panel notes, that’s pretty much what Twitter says it does.

In quick hits, I serve notice that no one should be surprised if Justice brings an adtech antitrust suit against Google. The Israeli government announces an attack on its infrastructure so late that the press has already identified and attributed its retaliatory cyberattack on Iran’s ports. And somebody pretty good – probably not the Russians, I argue – is targeting industrial firms.


 

Download the 319th 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 CyberlawPodcast@steptoe.com. 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.

On July 1, 2020, the California attorney general is expected to begin enforcing the California Consumer Privacy Act (CCPA), California’s groundbreaking new privacy law which has been in effect since January 1, 2020. In addition, the attorney general is also finalizing regulations that interpret and build upon the CCPA. To minimize the risk of potentially substantial penalties, businesses should familiarize themselves with the CCPA regulations and ensure that they are prepared to comply with the new requirements.

Join members of Steptoe’s Privacy & Cybersecurity practice for a webinar that will provide an overview of the CCPA and the attorney general’s regulations and will discuss key areas of CCPA compliance.

Date: June 11, 2020

Time: 2:00 p.m – 3:00 p.m. EDT

Click here to register.