Episode 188: Putting the “F” in FISA: Bipartisan Extremism and the Road to 1997

In this episode, Brian Egan and I deconstruct the endlessly proliferating “FISA 702 Reform” bills, from the irresponsible House Judiciary bill to the “I’ll see your irresponsible and raise you crazy” bipartisan extremist bill beloved of Sens. Wyden and Paul (and talk about truth in advertising:  what else would you call a bill that takes us back to the pre-9/11 status quo but S.1997?). Even the relatively restrained Senate Intelligence bill takes fire for its, ahem, “creative” approach to FBI searches of 702 data.  Brian does not share my distaste for all of the options, but agrees that the cornucopia of 702 proposals makes it even more unlikely that anything other than a straight-up short-term reauthorization can be passed before the end of the year.

In other legislative news, CFIUS reform is also in the air, and Sen. Cornyn’s carefully scripted rollout has begun. In her podcast debut, Alexis Early unpacks this complex bill. Need a one-word explanation? China. The bill tries to block all of the avenues China is believed to have traveled in its pursuit of US technology over the last decade. We also discuss how the bill would remove the veneer of “voluntariness” from at least part of the CFIUS process, which could impact a range of filers – particularly US technology companies seeking foreign investment.

Meanwhile, if you’re looking for confirmation that privacy is really just another word for protecting privilege, Twitter is apparently eager to provide it. Even as criticism and warnings about Russian misuse of Twitter to divide Americans and “diss” Hillary Clinton were rolling in last summer, the Russians were busily deleting their phony posts, and Twitter was right there to help. The company told even independent researchers who had saved Russian posts that the researchers had to delete any post that Twitter was deleting (which seems to be anything that the Russians deleted). This of course made it hard to criticize Twitter’s policies on foreign government trolling, since the evidence was gone, but the justification that Twitter offered was, naturally, privacy. Maybe the company’s privacy policy should come with a slogan: “Privacy: Good for you. Better for us.”

Of course, Twitter claims that it has to force the deletion of inconvenient tweets because of EU data protection policy. And indeed, European exceptionalism on the privacy front was front and center last week, with the European Parliament’s approval of a draft ePrivacy directive that law enforcement will hate, an unfavorable opinion on how many data protection authorities can regulate Facebook (clue: all of them), and an absolutely undecipherable explanation from the Article 29 working party of European restrictions on automated decision-making (my translation: “If you use AI in your business and we don’t like you, you’re toast.”). Maury Shenk provides a less jaundiced summary of these developments.

We do quick hits on Kaspersky’s defense, which looks more like it was designed to embarrass the US than to exonerate the company, on Microsoft’s eagerness to drop its gag order lawsuit in response to a change in DOJ policy, and on the FBI’s claim that encryption is now defeating half of the phone searches it tries to do.

Our interview is with Chris Painter, the State Department’s top cyber diplomat under President Obama. He offers candid views about the Tillerson reorganization, which pushes his old office deeper into “deep State” (the State bureaucracy). He also assesses what went right and wrong for cyber diplomacy on his watch, and what the US should be doing going forward. Brian Egan referees as Chris and I have what the State Department might call a “frank and candid exchange of views.”

Steptoe partner Stewart Baker (right) with Chris Painter

Mark your calendars for November 7th when we will gather for a live taping of a special episode on Election Cybersecurity at our Dupont Circle offices here in DC. To register please visit the Events page of our website at steptoe.com.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 188th Episode (mp3).

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The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.