David Kris, Paul Rosenzweig, and I dive deep on the big tech issue of the COVID-19 contagion: Whether (but mostly how) to use mobile phone location services to fight the virus. We cover the Israeli approach, as well as a host of solutions adopted in Singapore, Taiwan, South Korea, and elsewhere. I’m a big fan of Singapore, which produced in a week an app that Nick Weaver thought would take a year.

In our interview, evelyn douek, currently at the Berkman Klein Center and an SJD candidate at Harvard, takes us deep into content moderation. Displaying a talent for complexifying an issue we all want to simplify, she explains why we can’t live with social platform censorship and why we can’t live without it. She walks us through the growth of content moderation, from spam, through child porn, and on to terrorism and “coordinated inauthentic behavior” – the identification of which, evelyn assures me, does not require an existentialist dance instructor. Instead, it’s the latest and least easily defined category of speech to be suppressed by Big Tech. It’s a mare’s nest, but I, for one, intend to aggravate our new Tech Overlords for as long as possible.


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That’s the question I debate with David Kris and Nick Weaver as we explore the ways in which governments are using location data to fight the spread of COVID-19. Phone location data is being used to enforce quarantines and to track contacts with infected people. It’s useful for both, but Nick thinks the second application may not really be ready for a year – too late for this outbreak.

Our interview subject is Jason Healey, who has a long history with Cyber Command and a deep recent oeuvre of academic commentary on cyber conflict. Jay explains Cyber Command’s doctrine of “persistent engagement” and “defending forward” in words that I finally understand. It makes sense in terms of Cyber Command’s aspirations as well as the limitations it labored under in the Obama Administration, but I end up wondering whether it’s going to be different from “deterrence through having the best offense.” Nothing wrong with that, in my view – as long as you have the best offense by a long shot, something that is by no means proven.


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On March 11, California Attorney General (AG) Xavier Becerra released a third version of draft regulations implementing the California Consumer Privacy Act (CCPA). The third draft contains relatively minor changes from the second draft, which was released in February, suggesting that the AG is  close to finalizing the regulations, and that enforcement is likely to begin on schedule on July 1, 2020.

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The NSA’s use of call detail records to spot cross-border terror plots has a long history. It began life in deepest secrecy, became public (and controversial) after Edward Snowden’s leaks and was then reformed in the USA Freedom Act. Now it’s up for renewal, and the Privacy and Civil Liberties Oversight Board, or PCLOB, has weighed in with a deep report on how the program has functioned – and why NSA has suspended it. In this episode I interview Travis LeBlanc, a PCLOB Member, about the report and the program. Travis is a highly effective advocate, bringing me around on several issues, including whether the program should be continued and even whether the authority to revive it would be useful. It’s a superb guide to a program whose renewal is currently being debated (against a March 15 deadline!) in Congress.


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This is a bonus episode of the Cyberlaw Podcast – a freestanding interview of Noah Phillips, a Commissioner of the Federal Trade Commission. The topic of the interview is whether privacy and antitrust analysis should be merged, especially in the context of Silicon Valley and its social media platforms. Commissioner Phillips, who has devoted considerable attention to the privacy side of the FTC’s jurisdiction, recently delivered a speech on the topic and telegraphed his doubts in the title: “Should We Block This Merger? Some Thoughts on Converging Antitrust and Privacy.” Subject to the usual Cyberlaw Podcast injunction that he speaks only for himself and not his institution or relatives, Commissioner Phillips lays out the very real connections between personal data and industry dominance as well as the complexities that come from trying to use antitrust to solve privacy problems. Among the complexities: the key to more competition among social media giants could well be more sharing between companies of the personal data that fuels their network effects, and corporate sharing of personal data is what privacy advocates have spent a decade crusading against. It’s a wide-ranging interview, touching on, among other things, whether antitrust can be used to solve Silicon Valley’s censorship problem (he’s skeptical) and what he thinks of suggestions in Europe that perhaps the Schrems problem can be solved by declaring that post-CCPA California meets EU data privacy standards. Commissioner Phillips is bemused; I conclude that this is just Europe seeking revenge for President Trump’s Brexit support by promoting “Calexit.”


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The California Consumer Privacy Act (CCPA) has been in effect only since January 1, but it has already been cited in a lawsuit, apparently for the first time. On February 3, plaintiffs filed a class action complaint in the US District Court for the Northern District of California against retailer Hanna Andersson, LLC and Salesforce.com,

On February 7, 2020, California Attorney General (AG) Xavier Becerra released a second version of draft regulations implementing and interpreting the California Consumer Privacy Act (CCPA). The second iteration of the Attorney General’s draft regulations contain numerous important changes from the initial draft, some of which are summarized in this alert. One of the most

 

The next trade war will be over transatlantic data flows, and it will make the fight with China look like a picnic. That’s the subject of this episode’s interview. The European Court of Justice is poised to go nuclear – to cut off US companies’ access to European customer data unless the US lets European courts and data protection agencies refashion its intelligence capabilities according to standards no European government has ever been required to meet. It is Europe in full neocolonial mode, but it has sailed below the radar, disguised as an abstruse European legal fight. Maury Shenk and I interview Peter Swire on the Schrems cases that look nearly certain to provoke a transatlantic trade and intelligence crisis. Actually, Maury interviews Peter, and I throw bombs into the conversation. But if ever there were a cyberlaw topic that deserves more bomb-throwing, this is it.


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Nick Weaver and I debate Sens. Graham and Blumenthal’s EARN IT Act, a proposal to require that social media firms follow best practices on preventing child abuse. If they don’t, they won’t get full Section 230 immunity from liability for recklessly allowing the abuse. Nick thinks the idea is ill-conceived and doomed to fail. I think there’s a core of sense to the proposal, which simply asks that Silicon Valley firms who are reckless about child abuse on their networks pay for the social costs they’re imposing on society. Since the bill gives the attorney general authority to modify the best practices submitted by a commission of industry, academic, and civic representatives, critics are sure that the final product will reduce corporate incentives to offer end-to-end encryption.


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This week’s episode includes an interview with Bruce Schneier about his recent op-ed on privacy. Bruce and I are both dubious about the current media trope that facial recognition technology was spawned by the Antichrist. He notes that what we are really worried about is a lot bigger than facial recognition and offers ways in which the law could address our deeper worry. I’m less optimistic about our ability to write or enforce laws designed to restrict use of information that gets cheaper to collect, to correlate, and to store every year. It’s a good, civilized exchange.


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