Episode 209

It was a cyberlaw-packed week in Washington. Congress jammed the CLOUD Act into the omnibus appropriations bill, and boom, just like that, it’s law. Say good-bye to the Microsoft Ireland case just argued in the Supreme Court. Maury Shenk offers a view of the Act from the United Kingdom, the most likely and maybe the only beneficiary of the Act. Biggest losers? For sure the ACLU and EFF and their ilk, who were more or less rendered irrelevant when they lost the funding and implicit backing of Silicon Valley business interests.

But wait, there’s more Congressional action, and it’s bad news for Silicon Valley business interests. For the first time, the immunity conferred on social media platforms by Section 230 of the Communications Decency Act has been breached. Jamil Jaffer and I discuss FOSTA/SESTA, adopted this week. In theory the act only criminalizes media platforms that intentionally promote or facilitate prostitution, but any platforms that actually read their own content are likely at risk. Which is what Craigslist concluded, killing its personals section in response to the act. Worse for Silicon Valley, this may just be the beginning, as its unpopularity with left and right alike starts coming home to roost.

Not to be upstaged by Congress, President Trump announces a plan to impose $60 billion in tariffs on Chinese goods and new investment limits on Chinese money. Sue Esserman explains the plan and just how serious an issue it’s addressing.

Jim Lewis tells us about the FCC’s rumored plan to pile on Chinese telecom manufacturers, adopting a rule to bar the use of Universal Service funds to purchase Chinese telecom infrastructure gear. If we want to keep China out of our telecom infrastructure, he says, we should be prepared to pay a hefty price.

In any other week, Jim and Jamil would get to spend quality time chewing over the indictment and sanctioning of Iranian hackers charged with massive thefts of IP. Not this week. They give their bottom line up front: indictments and sanctions are a good first step but can’t be our only response.

Speaking of hating Silicon Valley, there’s a wave of criticism – and a lawsuit – building against Uber in what may be a self-driving car accident that better tech could have prevented. Jamil urges caution in reaching conclusions.

We barely have time for the massive flap over Facebook and Cambridge Analytica. Still I can’t help noting that in 2012, when the Obama campaign bragged about stripping the social graph of its Facebook followers, there was no privacy scandal. Today, after Cambridge Analytica made dubious claims to have done something similar, the EU’s ineffable Vera Jourova sees a “threat to democracy.” If you’re a conservative who supports new privacy attacks on Facebook, don’t blame me when it turns out that the new privacy law is weaponized against the right, just as the old one has been.

And, as a token bit of international news, China’s social credit system is being implemented in a totalitarian fashion that reminds me of Lyft’s embrace of the McCarthyite Southern Poverty Law Center, in that both systems deny transportation to those suffering from wrongthink. Maury Shenk says it also tells us something about the efficiency and clarity of authoritarian uses of new technology.

Speaking of wrongthink, Google’s YouTube is banning firearms demo videos. Some of the banned videos may soon be hosted on pornhub, which at least allows all those guys who used to read Playboy “for the articles” to visit pornhub “for the gun instructional videos.”

Finally, for our interview, Cyberlaw Podcast joins forces with the hosts of National Security Law Today, a podcast of the ABA Standing Committee on Law and National Security.

We interview Michael Page of OpenAI, a nonprofit devoted to a nonprofit devoted to developing safe and beneficial artificial intelligence. It’s a deep conversation, but lawyers will want to spend time with the latest study suggesting that AI reads contracts faster and better than most lawyers. Brrr!

Stewart Baker (right) with Elisa and Michael

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