Cyberlaw negotiations are the theme of episode 82, as the US and China strike a potentially significant agreement on commercial cyberespionage and Europeans focus on tearing up agreements with the US and intruding on US sovereignty.
Our guest for the episode is Jim Lewis, a senior fellow and director of the Strategic Technologies Program at the Center for Strategic and International Studies. Most importantly, Jim is one of the most deeply informed and insightful commentators on China and cybersecurity. He offers new perspectives on the Obama-Xi summit and what it means for cyberespionage.
Meanwhile, the news roundup is full of flamboyant European attacks on US sovereignty and US agreements with Europe. In a pending case involving Facebook, a highly influential advisor to the European Court of Justice has fired both barrels pointblank at the Safe Harbor privacy agreement with the United States. First, he concludes that any data protection authority is free to defy the primacy of Brussels and refuse to give effect to the EU’s determination that US practices under the Safe Harbor are “adequate” for data transfer purposes. Second, he concludes that US practices are not adequate because section 702 of the Foreign Intelligence Surveillance Act and other US law permits intelligence collection of European data on a mass scale. Maury Shenk and I agree that, if followed by the Court, this will be an enormous problem for the transatlantic relationship. I wonder why we’re giving Europeans the protection of the Privacy Act when their institutions are actively seeking to thwart one of our most effective counterterrorism intelligence programs.
Not to be outdone, Paris put the boot in as well, telling Google that censoring search results on google.fr was not enough. The right to be forgotten had to be extended to google.com, so that Americans and the rest of the world could be censored at the command of privacy bureaucrats in France’s data protection authority. Maury and I identify the biggest unanswered question: Has Google already started to censor its .com search results?
And India seems intent on playing on both sides of the US debate over encryption and lawful access. After coming down hard for Jim Comey’s side in a draft regulation, Michael Vatis and I note, the Indian government has had a change of heart, withdrawing the draft while leaving uncertain what will replace it.
Finally, in one piece of domestic news, Jason Weinstein unpacks a ruling that refuses to enforce an SEC demand for the passcodes needed to unlock phones.
As always, the Cyberlaw Podcast welcomes feedback. Send an e-mail to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. More importantly, we need feedback on whether to replace our theme music, and with what. Please take a listen to the samples at www.steptoe.com/cybermusic and vote for your favorite. Voting closes on October 9.
The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.