February 2016

What is the most surprising discovery a law firm partner makes when he jumps to the National Security Agency?  I direct that and other questions at Glenn Gerstell, who has just finished six months in the job as General Counsel at the National Security Agency.

In the news roundup, we begin, of course, with the fight between Apple and the Justice Department.  I open the discussion by reminding the audience that the war on terror cannot be a war on one of the world’s great religions and insisting that Apple remains a religion of peace.  Michael Vatis describes the Justice Department’s latest filing, and we trade for deep discovery, not only at the FBI but also at Apple.
Continue Reading Steptoe Cyberlaw Podcast – Interview with Glenn Gerstell

Triple Entente
Triple Entente

The Second Annual Triple Entente Beer Summit again filled the Washington Firehouse loft with an audience at least as knowledgeable as the panel, which consisted of Ben Wittes, Shane Harris, Stewart Baker, Tamara Cofman Wittes, and Alan Cohn.  The Triple Entente Beer Summit brings together members of the LawfareRational Security, and the Steptoe Cyberlaw podcasts.
Continue Reading Steptoe Cyberlaw Podcast – Triple Entente Beer Summit II

Anyone who has tried to explain bitcoin around their kitchen table knows that it is not easy to put your finger on what exactly the technology is.  Because of their innovative nature, digital currencies don’t have obvious analogs or fit easily into existing categories.  Bitcoin is part currency, part digital payment system, and part immutable ledger.
Continue Reading FinTech Bits: Are Bitcoin and Other Digital Currencies Securities?

Next  Thursday, February 18, from 6:00 pm – 9:00 pm, Alan Cohn and I will be speaking at the “2016 Triple Entente Beer Summit” at the Old Engine 12 Firehouse Restaurant (1626 North Capitol Street Northwest, Washington, DC).  This will be the second annual live recording of the three podcasts – Steptoe Cyberlaw Podcast,

We devote episode 100 to “section 702” intelligence – the highly productive counterterrorism program that collects data on foreigners from data stored on US servers.  What’s remarkable about the program is its roots:  President Bush’s decision to ignore the clear language of FISA and implement collection without judicial approval.  That decision has now been ratified by Congress – and will be ratified again in 2017 when the authority for it ends.  But what does it say about the future of intelligence under law that our most productive innovation in intelligence only came about because the law was broken?  Our guest for the episode, David Kris, thinks that President Bush might have been able to persuade Congress to approve the program in 2001 if he’d asked.  David may be right; he is a former Assistant Attorney General for National Security, the coauthor of the premier sourcebook on intelligence under law, “National Security Investigations & Prosecutions,” and the General Counsel of Intellectual Ventures.  But what I find surprising is how little attention has been paid to the question.  How about it?  Is George Bush to FISA what Abraham Lincoln was to habeas corpus?

My interview with David leaves Lincoln to the history books and instead focuses entirely on section 702.  David lays out the half-dozen issues likely to be addressed during the debate over reauthorization, including the risk that the legislation will attract efforts to limit overseas signals intelligence, now governed mainly by Executive Order 12333.  He then pivots to the issues he thinks Congress should grapple with but probably won’t – from the growing ambiguity of location as a proxy for US citizenship to the failure of current intelligence law to adequately extract intelligence from the technologies that have emerged since 9/11, particularly social media and advertising technology.
Continue Reading Steptoe Cyberlaw Podcast – Interview with David Kris

Our guest is Amit Ashkenazi, whom I interviewed while in Israel.  Amit is Legal Advisor of The Israel National Cyber Bureau and a former general counsel to Israel’s data protection agency.  Israel is drafting its own cybersecurity act, and we discuss what if anything that country can learn from the US debate – and what the US can learn from Israel’s cybersecurity experience.  We explore the challenges Israel will face in trying to start a new cybersecurity agency, how Israel strikes the balance between security and privacy, the risks of using contractors to staff a new agency, the danger of stating agency authorities with too much specificity, and why the agency is likely to look more like DHS than the FBI.
Continue Reading Steptoe Cyberlaw Podcast – Interview with Amit Ashkenazi