Our interview is with Mark Montgomery and John Costello, both staff to the Cyberspace Solarium Commission. The Commission, which issued its main report more than a year ago, is swinging through the pitch, following up with new white papers, draft legislative language, and enthusiastic advocacy for its recommendations in Congress, many of which were adopted last year. That makes it the most successful of the many cybersecurity commissions that have come and gone in Washington. And it’s not done yet. Mark and John review several of the most important legislative proposals the Commission will be following this year. I don’t agree with all of them, but they are all serious ideas and it’s a good bet that a dozen or more could be adopted in this Congress.

In the news roundup, David Kris and I cover the FBI’s use of a single search warrant to remove a large number of web shells from computers infected by China’s irresponsible use of its access to Microsoft Exchange. The use of a search (or, more accurately, a seizure warrant) is a surprisingly far-reaching interpretation of federal criminal Rule 41. But despite valiant efforts, David is unable to disagree with my earlier expressed view that the tactic is lawful.

Brian Egan outlines what’s new in the Biden administration’s sanctions on Russia for its SolarWinds exploits. The short version: While.some of the sanctions break new ground, as with Russian bonds, they do so cautiously.

Paul Rosenzweig, back from Costa Rica, unpacks a hacking story that has everything – terrorism, the FBI, Apple, private sector hacking, and litigation. Short version: we now know the private firm that saved Apple from the possibility of an order to hack its own phone. It’s an Australian firm named Azimuth that apparently only works for democratic governments but that is nonetheless caught up in Apple’s bully-the-cybersecurity-researchers litigation campaign.

Gus Hurwitz talks to us about the seamy side of content moderation (or at least on seamy side) – the fight against “coordinated inauthentic behaviour.”

In quicker takes, Paul gives us a master class in how to read the intel community’s Annual Threat Assessment. David highlights what may be the next Chinese telecom manufacturing target, at least for the GOP, after Huawei and ZTE. I highlight the groundbreaking financial industry breach notification rule that has finished now the comment period and is moving toward adoption. And Gus summarizes the state of Silicon Valley antitrust legislation –  everyone has a bill – so no one is likely to get a bill.

And more!

Download the 358th 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.

They used to say that a conservative was a liberal who’d been mugged. Today’s version is that a conservative who’s comfortable with business regulation is a conservative who’s been muzzled by Silicon Valley. David Kris kicks off this topic by introducing Justice Thomas’s opinion in a case over Trump’s authority to block users he didn’t like. The case was made thoroughly moot by both the election and Twitter’s blocking of Trump, but Justice Thomas wrote separately to muse on the ways in which Twitter’s authority to block users could be regulated by treating the company as a common carrier or public accommodation. David sees a trend among conservative jurists to embrace limits on Big Social’s authority to suppress speech.

I recount my experience being muzzled by LinkedIn, which would not let me link to a new Daily Mail story about the Hunter Biden laptop and say, “The social media giants that won’t let you say the 2020 election was rigged are the people who did their best to rig it: The Hunter Biden laptop was genuine and scandalous according to the Daily Mail.” To my mind, this is Big Social protecting its own business interests by suppressing a story that could convince people that the industry has too much power over our national dialogue and our elections. (I mocked LinkedIn by posting 5 variants of my original post, all making the same point in slightly different ways. You can see this on my LinkedIn account result)

But my view that we should not let five or six Silicon Valley owners take over our national dialogue is challenged by Jamil Jaffer, a friend and conservative who is appalled at my deviation from Republican antiregulatory orthodoxy and first amendment doctrine. It’s a great conservative catfight that mirrors the much greater catfight now under way in the Republican party.

Elsewhere in the news roundup, Jordan Schneider and David dig into the claims that China has built advanced weapons systems with the help of American chip designers and Taiwanese fabs. The accusation has led the Biden administration to slap export controls on several Chinese firms. Whether this will work without more aggressive U.S. controls on, say, foreign fabs serving those firms is open to question.

More to the point, it raises questions about long term U.S. industrial policy. David notes that one answer, the bipartisan “Endless Frontier Act,” is gaining some momentum. (I understand the motivation but question the execution.) We also touch on the sad story of Intel’s recent missteps, and the opportunity that industrial policy has created for GlobalFoundries’ IPO.

Meanwhile Jamil takes on AdTech espionage, while U.S. Senators ask Digital-Ad auctioneers to name foreign clients amid national-security concerns.

We all weigh in on the administration’s cyber picks, announced over the weekend. The unanimous judgment is that Chris Inglis, Jen Easterly, and Rob Silvers are good picks – and, remarkably, ended up in the right jobs.

In shorter hits, David and I ponder Twitch’s unusual decision to start punishing people on line for misdeeds offline – misdeeds that Twitch will investigate itself. While neither of us are comfortable with the decision, including the effort to do privately what we pay cops and courts to do publicly, but there is more justification for the policy in some cases (think child sexual abuse) than might be apparent at first glance.

I tell the story of the Italian authorities identifying and arresting someone trying to hire a hitman using cryptocurrency and the dark web. As far as I know, successful cryptocurrency hitmen remain as rare as unicorns

David suggests that I should be glad not to live in Singapore, where the penalty for information the establishment doesn’t like is a criminal libel judgment that I’d be forced to crowdfund like Singapore’s government critics. I note that American sites like GoFundMe and Patreon have already imposed ideological screens that mean I wouldn’t be able to crowdfund my defense against Big Social.

And, for This Week in Data Breaches, I note the new tactic of ransomware gangs trying to pressure their victims to pay by threatening the victims’ customers with doxxing plus the remarkable phenomenon of half-billion-user data troves that the source companies say are not really the result of network breaches and so not disclosable.

And more!

Download the 357th 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 Kim Zetter, author of the best analysis to date of the weird messaging from NSA and Cyber Command about the domestic “blind spot” or “gap” in their cybersecurity surveillance. I ask Kim whether this is a prelude to new NSA domestic surveillance authorities (definitely not, at least under this administration), why the gap can’t be filled with the broad emergency authorities for FISA and criminal intercepts (they don’t fit, quite), and how the gap is being exploited by Russian (and soon other) cyberattackers. My most creative contribution: maybe AWS, where most of the domestic machines are being spun up, would trade faster cooperation in targeting such machines for a break on the know-your-customer rules they may otherwise have to comply with. And if you haven’t subscribed to Kim’s (still free for now) substack newsletter, you’re missing out.

In the news roundup, we give a lick and a promise to today’s Supreme Court decision in the fight between Oracle and Google over API copyrights, but Mark MacCarthy takes us deep on the Supreme Court’s decision cutting the heart out of most, class actions for robocalling. Echoing Congressional Dems, Mark thinks the Court’s decision is too narrow. I think it’s exactly right. We both expect Congress to revisit the law soon.

Nick Weaver and I explore the fuss over vaccination passports and how Silicon Valley can help. Considering what a debacle the Google and Apple effort on tracing turned into, with a lot of help from privacy zealots, I’m pleased that Nick and I agree that this is a tempest in a teapot. Paper vax records are likely to be just fine most of the time. That won’t prevent privacy advocates from trying to set unrealistic and unnecessary standards for any electronic vax records system, more or less guaranteeing that it will fall of its own weight.

Speaking of unrealistic privacy advocates, Charles-Albert Helleputte explains why the much-touted GDPR privacy regime is grinding to a near halt as it moves from theory to practice. Needless to say, I am not surprised.

Mark and I scratch the surface of Facebook’s Fairness Flow for policing AI bias. Like anything Facebook does, it’s attracted heavy criticism from the left, but Mark thinks it’s a useful, if limited, tool for spotting bias in machine learning algorithms. I’m half inclined to agree, but I am deeply suspicious of the confession in one “model card” that the designers of an algorithm for identifying toxic speech seem to have juiced their real-life data with what they call “synthetic data” because “real data often has disproportionate amounts of toxicity directed at specific groups.” That sure sounds as though the algorithm relying on real data wasn’t politically correct, so the researchers just made up data that fit their ideology and pretended it was real – an appalling step for scientists to take with little notice. I welcome informed contradiction.

Nick explains why there’s no serious privacy problem with the IRS subpoena to Circle, asking for the names of everyone who has more than $20 thousand in cryptocurrency transactions. Short answer: everybody who doesn’t deal in cryptocurrency already has their transactions reported to the IRS without a subpoena.

Charles-Albert and I not that the EU is on the verge of finding that South Korea’s data protection standards are “adequate” by EU standards. The lesson for the US and China is simple: The Europeans aren’t looking for compliance; they’re looking for assurances of compliance. As Fleetwood Mac once sang, “Tell me lies, tell me sweet little lies.”

Mark and I note the extreme enthusiasm with which the FBI used every high-tech tool to identify even people who simply trespassed in the Capitol on January 6. The tech is impressive, but we suspect a backlash is coming. Nick weighs in to tell me I’m wrong when I argue that we didn’t see these tools used this way against ANTIFA’s 2020 rioters.

Nick thinks we haven’t paid enough attention to the Accellion breach, and I argue that companies are getting a little too comfortable with aggressive lawyering of their public messages after a breach. One result is likely to be a new executive order about breach notification (and other cybersecurity obligations) for government contractors, I predict.

And Charles and I talk about the UK’s plan to take another bite out of end-to-end encryption services, essentially requiring them to show they can still protect kids from sexual exploitation without actually reading the texts and pictures they receive.

Good luck with that!

Download the 356th 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 this week is with Francis Fukuyama, a fellow and teacher at Stanford and a renowned scholar and public intellectual for at least three decades. He is the coauthor of the Report of the Working Group on Platform Scale. It’s insightful on the structural issues that have enhanced the power of platforms to suppress and shape public debate. It understands the temptation to address those issues through an antitrust lens – as well as the reasons why antitrust will fail to address the threat that platform power poses to our democracy. As a solution, it proposes to force the platforms to divest their curatorial authority over what Americans (and the world) reads, creating a host of middleware suppliers who will curate consumers’ feeds in the way that consumers prefer. We explore the many objections to this approach, from first amendment purists to those, mainly on the left, who really like the idea of suppressing their opponents on the right. But it remains the one policy proposal that could attract support from left and right and also make a real difference.

In the news roundup, Dmitri Alperovich, Nick Weaver, and I have a spirited debate over the wisdom of Google’s decision to expose and shut down a western intelligence agency’s use of zero day exploits against terrorist targets. I argue that if a vulnerabilities equities process balancing security and intelligence is something we expect from NSA, it should also be expected of Google.

Nate Jones and Dmitri explore the slightly odd policy take on SolarWinds that seems to be coming from NSA and Cyber Command – the notion that the Russians exploited NSA’s domestic blind spot by using US infrastructure for their attack. That suggests that NSA wants to do more spying domestically, although no such proposal has surface. Nate, Dmitri, and I are united in thinking that the solution is a change in US law, though Dmitri thinks a know your customer rule for cloud providers is the best answer, while I think I persuaded Nate that empowering faster and more automatic warrant procedures for the FBI is doable, pretty much as we did with the burner phone problem in the 90s.

The courts, meanwhile, seem to be looking for ways to bring back a Potter Stewart style of jurisprudence for new technology and the fourth amendment: “I can’t define it, but I know it when it creeps me out.” The first circuit’s lengthy oral argument on how long video surveillance of public spaces can continue without violating the fourth amendment is a classic of the genre.

Dmitri and Nick weigh in on Facebook’s takedown of Chinese hackers using Facebook to target Uighurs abroad.

Dmitri thinks we can learn policy lessons from the exposure (and likely sanctioning) of the private Chinese companies that carried out the operation.

Dmitri also explains why CISA’s head is complaining about the refusal of private companies to tell DHS which US government agencies were compromised in SolarWinds. The companies claimed that their NDAs with, say, Treasury meant that they couldn’t tell DHS that Treasury had been pawned. That’s an all too familiar example of federal turf fights hurting federal cybersecurity.

In our ongoing feature, This Week in US-China Decoupling, we cover the “Disaster in Alaska” evaluate the latest bipartisan bill to build a Western technology sphere to compete with China’s sector, note the completely predictable process ousting of Chinese telecom companies from the US market, and conclude that the financial sector’s effort to defy the gravity of decoupling will be a hard act to maintain.

Always late to embrace a trend, I offer Episode 1 of the Cyberlaw Podcast as a Non-Fungible Token to the first listener to cough up $150, and Nick explains why it would be cheap at a tenth the price, dashing my hopes of selling the next 354 episodes and retiring.

Nick and I have kind words for whoever is doxxing Russian criminal gangs, and I suggest offering the doxxer a financial reward (not just a hat tip in a Brian Krebs column. We fewer kind words have for the prospect that AI will soon be able to locate, track, and bankrupt problem gamblers. 

I issue a rare correction to an earlier episode, noting that Israel may not have traded its citizens’ health data for first dibs on the Pfizer vaccine. It turns out that what was deidentified aggregate health data, Israel offered Pfizer which with proper implementation may actually stay aggregate and deidentified. And I offer my own hat tip to Peter Machtiger, for a student note in an NYU law journal that cites the Cyberlaw Podcast, twice!

And more!

Download the 355th 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 news roundup for this episode is heavy on China and tech policy. And most of the news is bad for tech companies. Jordan Schneider tells us that China is telling certain agencies, not to purchase Teslas or allow them on the premises, for fear that Elon Musk’s famously intrusive record-keeping systems will give US agencies insight into Chinese facilities and personnel. Pete Jeydel says the Biden administration is prepping to make the same determination about Chinese communications and information technology, sending subpoenas to a number of Chinese tech suppliers. Meanwhile, Apple’s effort to protect its consumers from apps that collect personal data is coming under pressure from what Jordan sees as a remarkable alliance of normally warring companies, including Baidu, Tencent, and Bytedance. In addition to their commercial heft, all these companies likely have more juice in Beijing than Apple, so look for Tim Cook to climb down from his privacy high horse in China. (And Russia, where Apple has already agreed to let the Russian government specify the apps that must come preinstalled on iPhones sold in Russia.) Still, you can expect that Apple will continue to bravely refuse to cooperate with the FBI on terrorism and serious crime because that might set a precedent for cooperating with government demands in places like Russia and China (like them, I guess, but, you know, smaller).

But the episode gets its title from our discovery that President Xi’s critique of social media platforms sounds exactly like Sen. Josh Hawley’s. It is, in fact, the global bien pensant consensus, which has no dissenters to speak of now that the Chinese go to Davos. Jordan offers insights into why the Chinese government’s concerns about Big Tech might have its origins in something other than factional strife in Beijing.

David Kris and I dive into the final word from the intelligence community on foreign governments’ interference (via hacking or influence ops) in our 2020 election. The short answer is that the Russians and the Chinese didn’t hack our election machinery, in fact they didn’t even try. So, chest-beating over our 2020 cyber defenses may be a little like doing a victory lap after the other team forfeits. David and I manage to disagree about a few things, including the Hunter Biden laptop story, which I contend is now the principal disinformation campaign of 2020, as the media and Big Tech combined to throttle the story on spurious suspicions of a Russian hand in its provenance; David disagrees.

Pete Jeydel and Ishan Sharma, our interview guest, weigh in on the latest cyber conflict paper from the United Nations. We all agree that it could be worse, and that getting the General Assembly to accept it was an achievement at a time of lowered expectations for the UN.

The Cyber Space Solarium Commission is not going away, Pete and I agree, as witness the most recent report card issued to the Biden Administration by a Solarium staffer. In principle, that’s a good thing; commissions need to stick around and fight for their recommendations. But I can’t help complaining that some of the things the Commission is fighting for – Senate confirmation of a White House cyber director, and cutting DHS out of supply chain governance – are bad ideas.

We close with a recognition of the rafts of material supplied over the years to the podcast by the data protection authorities of Europe. They’ve mostly always been an example of what Texans call “all hat and no cattle” – better talkers than doers. But now their lack of serious implementation skills is catching up to them, as the companies they have penalized begin to pursue, and win, judicial appeals. That’s a trend likely to continue, and a good thing too.

Our interview is with Ishan Sharma, from the Federation of American Scientists, and author of “A More Responsible Digital Surveillance Future Multi-stakeholder Perspectives and Cohesive State & Local, Federal, and International Actions.”

If you like the episodes where I disagree profoundly with my guests, this one’s for you. I don’t think Ishan gets more than two minutes in before the critiquing begins. Still, he holds his own, defending a vision of surveillance technology that serves democratic ends and is for that reason supported and even subsidized in a global competition with the less democratic alternatives from China. I suspect that he’ll lose friends on both the left and the right as he tries to walk this line, but he’s clearly put a lot of thought into finding an alternative to technopessimism, and he defends it ably.

And more!

Download the 354th 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.

This week we interview Eliot Higgins, founder and executive director of the online investigative collective Bellingcat and author of We Are Bellingcat.

Bellingcat has produced remarkable investigative scoops on everything from Saddam’s use of chemical weapons to exposing the Russian FSB operatives who killed Sergei Skripal with Novichok, and, most impressive, calling a member of the FSB team that tried to kill Navalny and getting him to confess. Eliot talks about the techniques that make Bellingcat so effective and the hazards, physical and moral, that surround crowdsourced investigations.

In the news, Dave Aitel gives us the latest on the Exchange server compromise, and the reckless Chinese hack-everyone spree that was apparently triggered by Microsoft’s patch of the vulnerability.

Jamil Jaffer introduces us to the vulnerability of the week – dependency confusion, and the startling speed with which it is being exploited.

I ask Nate Jones and the rest of the panel what all this means for government policy. No one thinks that the Biden published cyberstrategy tells us anything useful. More interesting are two deep dives on cyberstrategy from people with a long history in the field. We see Jim Lewis’s talk on the topic as an evolution in the direction of much harsher responses to Russian and Chinese intrusions. Dmitri Alperovich’s approach also has a hard edge, although he points out that the utter irresponsibility of the Chinese pawn-em-all tactic deserves an especially harsh response. I wonder why Cyber Command didn’t respond by releasing a worm that would install poorly secured shells on every Exchange server in China.

In other news, I blame poor (or rushed) DOD lawyering for the district court ruling that DOD couldn’t list Xiaomi as an entity aligned with the Chinese military. Jamil is more charitable both to DOD and the Judge who made the ruling, but he expects (or maybe just hopes) that the court of appeal will show DOD more deference.

Twitter, on the other hand, is praying that the Northern District of California suffers from full-blown Red State Derangement, as it asks the court there to enjoin a Texas Attorney General investigation into possible anticompetitive coordination in the Great Deplatforming of January 2021.

Nate gives us the basics. I observe that, to bring such a Hail Mary of a case, Twitter must deeply fear what its own employees were saying about the deplatforming at the time. Neither Nate nor I give Twitter a high probability of success. And even if it does succeed, red states are lining up new laws and regulatory initiatives for Silicon Valley, most notably Gov. DeSantis’s controversial effort to navigate section 230 and the first amendment.

Nate also provides a remarkably clear explanation of the sordid tale of European intelligence and law enforcement agencies trying to cut a special deal for themselves in the face of surveillance-hostile rulings from the EU’s Court of Justice. The agencies are right to want to avoid those foolish decisions, but leaving the US on the hook will only inflame trans-Atlantic relations.

In quick hits, Jamil and Dave talk us through Israel’s Unit 8200, the press on which offers a better cybersecurity VC alumni network than Stanford. Playing to type, I close with This Week in Sex Toy Security and immediately display my naivete. Wearables, who knew? But the security lapses in what Dave calls the internet of junk at least offers a new image to go with the concept of a man-in-the-middle attack.

And more!

Download the 353rd 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.

We’re mostly back to our cybersecurity roots in this episode, for good reasons and bad. The worst of the bad reasons is a new set of zero-day vulnerabilities in Microsoft’s Exchange servers. They’ve been patched, Bruce Schneier tells us, but that seems to have inspired the Chinese government hackers to switch their campaign from Stealth to Promiscuous Mode. Anyone who hasn’t already installed the Microsoft patch is at risk of being compromised today for exploitation tomorrow.

Nick Weaver and Dmitri Alperovitch weigh in on the scope of the disaster and later contribute to our discussion of what to do about our ongoing cyberinsecurity. We’re long on things that don’t work. Bruce has pointed out that the market for software products, unfortunately, makes it entirely rational for industry to skimp on security while milking a product’s waning sales. Voluntary information sharing, has failed Dmitri notes. In fact, as OODA Loop reported in a devastating chart, information sharing is one of half a dozen standard recommendations made in the last dozen commission recommendations for cybersecurity. They either haven’t been implemented or they don’t work.

Dmitri is hardly an armchair quarterback on cybersecurity policy. He’s putting his money where his mouth is, in the form of the Silverado Policy Accelerator, which we discuss during the interview segment of the episode. Silverado is focused on moving the cybersecurity policy debate forward in tangible, sometimes incremental, ways. It will be seeking new policy ideas in cybersecurity, trade and the environment, and industrial policy. (The unifying theme is the challenge to the US posed by the rise of China and the inadequacy of our past response to that challenge.) But ideas are easy; implementation is hard. Dmitri expects Silverado to focus its time and resources both on identifying novel policy ideas and on ensuring those ideas are transformed into concrete outcomes.

Whether artificial intelligence would benefit from some strategic decoupling sparks a debate between me, Nick, Jane Bambauer, and Bruce, inspired by the final AI commission report. We shift from that to China’s version of industrial policy, which seems to reflect Chinese politics in its enthusiasm not just for AI and chips but also for keeping old leaders alive longer.

Jane and I check in on the debate over social media speech suppression, including the latest developments in the Facebook Oversight Board and the unusual bedfellows that the issue has inspired. I mock Google for YouTube’s noblesse oblige promise that it will stop suppressing President Trump’s speech when it no longer sees a threat of violence on the Right. And then I mock it again for its silly refusal to return search results for “BlueAnon”—the Right’s label for the Left’s wackier conspiracy theories.

In quick hits, Bruce and Dmitri explore a recent Atlantic Council report on hacked access as a service and what to do about it. Bruce thinks the problem (usually associated with NSO) is real and the report’s recommendations plausible. Dmitri points out that trying to stamp out a trade in zero days is looking at the wrong part of the problem, since reverse engineering patches is the source of most successful attacks, not zero days. Speaking of NSO, Nick reminds us of the rumors that they have been under criminal investigation and that the investigation has been revived recently.

Jane notes that Virginia has become the second state with a consumer data protection law, and one that resembles California’s CCPA.

Jane also notes the Israeli Supreme Court decision ending (sort of) Shin Bet’s use cellphone data for coronavirus contact tracing. Ironically, it turns out to have been more effective than most implementations of the Gapple privacy-crippled app.

Bruce and Dmitri celebrate the hacking of three Russian cybercrime forums for the rich array of identity clues the doxxing is likely to make available to researchers like Bellingcat (whose founder will be our interview guest on Episode 353 of the Cyberlaw Podcast.

And more!

Download the 352nd 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.

 

In the news roundup, David Kris digs into rumors that Chinese malware attacks may have caused a blackout in India at a time when military conflict was flaring on the two nation’s Himalayan This leads us to Russia’s targeting of the US grid and to uneasy speculation on how well our regulatory regime is adapted to preventing successful grid attacks.

The Biden administration is starting to get its legs under it on cybersecurity. In its first major initiative, Maury Shenk and Nick Weaver tell us, it has called for a set of studies on how to secure the supply chain in several critical products, from rare earths to semiconductors. As a reflection of the rare bipartisanship of the issue, the President’s order is weirdly similar to Sen. Tom Cotton’s to “beat China” economically.

Nick explains the most recent story on how China repurposed an NSA attack tool to use against US targets. Bottom line: It’s embarrassing for sure, but it’s also business as usual for attack teams. This leads us to a surprisingly favorable review of the Cyber Threat Alliance’s recent paper on how to run a Vulnerability Equities Process.

Maury explains the new rules that Facebook, WhatsApp and Twitter will face in India. Among other things, the rules will require Indi-based “grievance officers” to handle complaints. I am unable to resist snarking that if ever there were a title that the wokeforce at these companies should aspire to, it’s Chief Grievance Officer.

Nick and I make short work of two purported scandals – ICE investigators using a private utility database to enforce immigration law and the IRS purchasing cellphone location data. I argue that the first is the work of ideologues who would loudly protest ICE access to the White Pages. And the second is a nonstory largely manufactured by Sen. Wyden.

In a story that isn’t manufactured, David and I predict that the Supremes will agree to decide the scope of cellphone border searches. More than that, we conclude, the Ninth Circuit will lose. The hard question is how broadly the Court decides to rule once it has kicked the Ninth Circuit rule to the curb.

Maury reports that Facebook and Google have pushed the Aussie government into a compromise on paying Aussie media fees for links.

Facebook gets the credit for being willing to shoot the family members the government was holding hostage (although in Facebook’s case, the hostage was probably a second cousin once removed).

Maury predicts that the negotiations will be tougher once the European Union starts rounding up its hostages.

In Quick Hits, I claim credit for pointing out years ago that sooner or later the crybullies would come for “quantum supremacy.” And they have.

Maury and I note the rise of audits for AI. He’s mildly favorable; I am not. And I close by noting the surprisingly difficult choices illustrated by Pro Publica’s story on how the content moderation sausage was made at Facebook when the Turkish government demanded that a Kurdish group’s postings be taken down.

And more!

Download the 351st 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.

This episode features an interview with Jason Fagone, journalist and author of The Woman Who Smashed Codes: A True Story of Love, Spies, and the Unlikely Heroine Who Outwitted America’s Enemies. I wax enthusiastic about Jason’s book, which features remarkable research, a plot like a historical novel, and deep insights into what I call NSA’s “pre-history” – the years from 1917 through 1940 when the need for cryptanalysis was only dimly perceived by the US government. Elizebeth and William Friedman more or less invented American cryptanalysis in those years, but the full story was never known, even to NSAers. It was protected by a force even stronger even than classification – J. Edgar Hoover’s indomitable determination to get good press for the FBI even when all the credit belonged elsewhere. And, at all its crucial stages, that prehistory is a love story that lasted, literally, right to the grave. Don’t miss this (long!) interview with Jason Fagone, or his book.

Meanwhile, in the news roundup. Dmitri Alperovitch covers the latest events in what we just can’t call the SolarWinds hack any more. There’s no doubt that Microsoft code is at the center of the hack, though not because of unintended features; the hackers showed great interest in Microsoft’s code. Dmitri predicts multiple executive orders from Anne Neuberger’s review, and he hopes it means more centralization of federal civilian security monitoring and policy under CISA. Dmitri and I agree that the Congressional effort to turn the cybersecurity director position into a Senate-confirmed White House office is more trouble than it’s worth.

The Maryland law imposing taxes on Google and Facebook ad revenue is ground-breaking, and for that reason is will also be heavily litigated. First time caller, first time listener David Fruchtman explains the tax and the litigation it has already spawned.

Which came first, China’s dream of a rare-earth boycott or US nightmares of a rare-earth boycott? We ask Jordan Schneider, who suggests that neither the dream nor the nightmare is likely to come true any time soon.

Is Australia going to war with Big Tech? I take on Oz’s link fee and end up siding, improbably, with Mike Masnick and Facebook and against the fee. Meanwhile, the Australian infrastructure protection bill is drawing fire from Microsoft. Dmitri leans toward Microsoft’s view that the law should not give government authority to intervene when a private sector entity is unable or unwilling to respond to an attack. I lean toward the government.

Jordan Schneider reviews the latest stories of tech companies getting a little too close for comfort to the Chinese surveillance state. The ByteDance censorship story is compelling but not new. The Oracle story is compelling, new, and a clever piece of journalism by another alumna of the podcast, Mara Hvistendahl.

Finally, in a series of quick bites, we cover:

And more.

Download the 350th 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 this week is with Nicole Perlroth, The New York Times reporter and author of This Is How They Tell Me the World Ends: The Cyberweapons Arms Race. It’s wide-ranging, occasionally confrontational, and a great tour of the issues raised in the book about 0-day exploits, US responsibility for the global cyber arms race, and the colorful personalities whose hard choices helped shape the cybersecurity environment we all now live in.

In the news roundup, Nate Jones serves up a second helping of the SuperMicro story, a rerun of a much-maligned Bloomberg report from two years ago that SuperMicro gear had been elaborately compromised by China. This time, Nate reports, Bloomberg offers much more evidence, but probably not enough to completely satisfy the critics. Still, as we conclude, even giving the critics their due, this is a very bad story for SuperMicro – and for its customers.

It seemed like a classic cybersecurity horror story, with hackers using access to the industrial control system to nearly poison Oldsmar’s water supply. But Nate and I both suspect that it will turn out to be a much more mundane horror story, one where the call is always coming from inside the house – and untraceable because all the employees use the same password and no firewall.

Paying for news links is suddenly all the rage among Western governments. I’d link to the Australian stories about their new law, but I’m afraid they’d want me to pay them. Mark MacCarthy says that risk is overrated, but the prospect for such payment schemes is pretty good. Not just Australia, but also the EU are moving in this direction.

And Microsoft has expressed its willingness to let Google pay such a fee in the US. I suggest that this is all part of restoring an Establishment of “authoritative narrative shapers,” in an internet age, noting that the critical question will be which publishers can attach themselves to the flow of internet funding – a question already causing angst among French publishers.

Paul Rosenzweig summarizes the work done by a lot of smart people on the question of how to think about Chinese technology platforms operating in the United States. He also summarizes the current state of litigation over Chinese technology platforms operating in the United States. In a word, it’s mostly on hold, waiting for the Biden administration to run a laborious interagency review.

Nate says the process has already begun for a related topic – how to secure the US tech supply chain, particularly manufacturing semiconductor.

Meanwhile, the First Circuit has taken on the question of border searches of mobile phones, ruling against a coalition of cyberleft organizations. There is now a circuit conflict that could bring the Supreme Court into the fray – soon if the cyberleft losers are imprudent enough to seek cert but not much longer than that if the Solicitor General picks a favorable case to lose in the Ninth Circuit.

In short hits, I wonder at just how bad open source security has gotten, noting a clever hack that pawned many companies by providing a public (and compromised) package in a public repository, thereby trumping the companies’ private packages.

Luckily, NIST is all over open source security. Or not. It turns out that NIST is actually offering a host of insecure open source products with known flaws. The purpose of the products? Better computer security, naturally.

The creative policing award of the week goes to the Beverly Hills cop who expresses his unhappiness with being filmed on the job by playing background snippets of songs that will get the video taken down by copyright bots if it is ever posted.

In the “about time” category, a Canadian woman who defamed dozens of ordinary people in online vendettas has been arrested in Toronto.

And EncroChat, the phone that promised criminals absolute security but delivered them into the hands of law enforcement has spawned a complicated debate about whether stealing messages from memory was wiretapping or hacking.

Finally, either The Cyberlaw Podcast has hit a new height or the Harvard Law Review has hit a new low: Looking for a way to sum up the European Court of Justice’s ruling in Schrems II, a student note in the review quotes from the podcast, characterizing Schrems II as “solipsistic Europocrisy meets judicial imperialism.” Couldn’t have said it better myself!

And more.

Download the 349th 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.