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Steptoe Cyberblog

Episode 272: Illuminating supply chain security

Posted in China, European Union, International, Security Programs & Policies


What is the federal government doing to get compromised hardware and software out of its supply chain? That’s what we ask Harvey Rishikof, coauthor of “Deliver Uncompromised,” and Joyce Corell, who heads the Supply Chain and Cyber Directorate at the National Counterintelligence and Security Center. There’s no doubt the problem is being admired to a fare-thee-well, and some evidence it’s also being addressed. Listen and decide!

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Episode 271: Is social media a disease, and how do we treat it?

Posted in AI, China, International


This week I interview Glenn Reynolds, of Instapundit and the UT Knoxville law school, about his new book, The Social Media Upheaval. In a crisp 64 pages, Glenn analogizes social media to a primeval city, where new proximity produces periodic outbreaks of diseases that more isolated people never experienced; traces social media’s toxicity to the desperate pursuit of engagement; and proposes remedies both for individual users and for society whole.  All that plus thoughtful advice on dietary supplements and deadlifts!

In the news roundup, Matthew Heiman dissects a recent Third Circuit ruling that Amazon can be held strictly liable for products it markets for third parties. Unlike Matthew, I am largely persuaded by the court’s ruling on products liability – but Matthew and I both have doubts about its use of section 230 of the Communications Decency Act to protect Amazon from failure to warn liability.

Maury Shenk and Nick Weaver review the progress of the War on Facial Recognition. Opponents have rolled out the ultimate weapon in modern left ideology – OMG, ICE is using it!  But facial recognition is still winning, mostly because its opponents are peddling undifferentiated fear of a technology that’s already being used for many very different purposes, from anonymously tracking shoppers moving through a store (where the store doesn’t need to know the shoppers’ identities) to boarding planes (where the airline damn well better know the passengers’ identities, and the tech only has a couple of hundred faces to match).

Matthew and Nick consider China’s seizing and installing spyware on travelers’ devices. Turns out, China’s practice isn’t all that different from most government efforts to extract data from phones, except that the Chinese leave the code on Android devices so that security researchers can reverse engineer China’s deepest fears. And what do they fear most?  Japanese heavy metal, apparently.  Almost makes you feel a bit of empathy for Beijing…

Maury also highlights Big Tech’s concerns about the UK’s particularly aggressive proposal for an online “duty of care.

Nick and I follow the problem of fake cancer cures being advertised on Facebook and YouTube down the usual ratholes – who should be responsible in the first place, and why does Silicon Valley think that algorithms will ever be able to discipline such content?

This Week in the US China trade war: No one seems to know exactly what President Trump’s concessions at the G-20 meeting amount to, but more and more US tech companies have decided that moving 30% of their tech sourcing out of China is a good idea no matter how the trade war ends. This war isn’t good for US companies, but it’s really not good for China’s. Which, come to think of it, is what President Trump has said right from the start.

Finally, if you’re looking for tough government action against contractors with bad cybersecurity, CBP is your agency.  It has cut ties with Perceptics, the firm that was breached by Boris the Bullet-Dodger, and seems to be readying a debarment proceeding that will cut the firm off from future contracts. Matthew and I speculate that there may be something more behind this harsh remedy – perhaps a lack of prompt contractor candor about the breach. Whatever the context, though, this proceeding is likely to set a precedent that haunts other contractors long into future.

Download the 271st Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunesGoogle Play, SpotifyPocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember, if your guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

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



Episode 270: China’s cyber offense comes of age

Posted in CFIUS, Cloud Computing, International, Security Programs & Policies


The theme this week is China’s growing confidence in using cyberweapons in new and sophisticated ways, as the US struggles to find an answer to China’s growing ambition to dominate technology. Our interview guest, Chris Bing of Reuters, talks about his deep dive story on Chinese penetration of managed service providers like HP Enterprise – penetration that allowed them access to hundreds of other companies that rely on managed service providers for most of their IT. Most chilling for the customers are strong suggestions that the providers often didn’t provide notice of the intrusions to their customers – or that the providers’ contracts may have prevented their customers from launching quick and thorough investigations when their own security systems detected anomalous behavior originating with the providers. Chris also tells the story of an apparent “Five Eyes” intrusion into Yandex, the big Russian search engine.

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Episode 269: A McLaughlin Group for cybersecurity

Posted in Cybersecurity and Cyberwar, International, Security Programs & Policies


Our interview guests are Dick Clarke and Rob Knake, who have just finished their second joint book on cybersecurity, The Fifth Domain. We talk about what they got right and wrong in their original book. There are surprising flashes of optimism from Clarke and Knake about the state of cybersecurity, and the book itself is an up-to-date survey of the policy environment. Best of all, they have the courage to propose actual policy solutions to problems that many others just admire. I disagree with about half of their proposals, so much light and some heat are shed in the interview, which I end by bringing back the McLaughlin Group tradition of rapid-fire questions and an opinionated “You’re wrong” whenever the moderator disagrees. C’mon, you know the arguments are really why you listen, so enjoy this one!

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More States Move to Restrict Companies’ Use or Sale of Personal Information

Posted in Privacy Regulation

In the aftermath of the passage of the California Consumer Privacy Act (CCPA) in 2018, numerous other states have begun to consider similar legislation. While most of those states are in the early stages of the legislative process, Nevada and Maine recently enacted laws strictly regulating what online companies can do with their customers’ personal information.

The Nevada legislation applies broadly to commercial online services that operate in the state, but its restrictions affect only the sale of customer information; it was signed into law on May 29, and will go into effect on October 1, 2019. The Maine legislation is more narrowly targeted at broadband Internet access providers, but its restrictions apply not just to the sale of customer information but also its use or access; it was signed into law on June 6 and will go into effect on July 1, 2020. The Nevada legislation will more directly affect retailers that operate in Maine and have websites or provide other online services. The Maine law may not affect most retailers directly, since it’s limited to broadband Internet access service providers.

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Episode 267: “Call me a fascist again and I’ll get the government to shut you up. Worldwide.”

Posted in Data Breach, European Union, International, Russia


We kick off Episode 267 with Gus Hurwitz reading the runes to see whether a 50-year Chicago winter for antitrust plaintiffs is finally thawing in Silicon Valley. Gus thinks the predictions of global antitrust warming are overhyped. But he recognizes we’re seeing an awful lot of robins on the lawn: The rise of Margrethe Vestager in the EU, the enthusiasm of state AGs for suing Big Tech, and the piling on of Dem presidential candidates and the House of Representatives. Judge Koh’s Qualcomm decision is another straw in the wind, triggering criticism from Gus (“an undue extension of Aspen Skiing”) and me (“the FTC needs a national security minder in privacy and competition law”). Matthew Heiman tells me I’m on the wrong page in suggesting that Silicon Valley’s suppression of conservative speech is a detriment to consumer welfare that the antitrust laws should take into account, even in a Borkian world.

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Episode 266: Will an end to social media trust mean an end to end-to-end encryption?

Posted in International


If you’ve lost the Germans on privacy, you’ve lost Europe, and maybe the world. That’s the lesson that emerges from my conversation with David Kris and Paul Rosenzweig about the latest declaration that the German interior minister wants to force messaging apps to decrypt chats. This comes at the same time that industry and civil society groups are claiming that GCHQ’s “ghost proposal” for breaking end-to-end encryption should be rejected. The paper, signed by all the social media giants, says that GCHQ’s proposal will erode the trust that users place in Silicon Valley. I argue that that argument is well past its sell-by date. Continue Reading

Episode 265: Cheapfakes and the end of blackmail

Posted in China, Cybersecurity and Cyberwar, International


Paul Rosenzweig leads off with This Week in China Tech Fear – an enduring and fecund feature in Washington these days. We cover the Trump Administration’s plan to blacklist up to five Chinese surveillance companies, including Hikvision, for contributing to Uighur human rights violations in the West of China, DHS’s rather bland warning that commercial Chinese drones pose a data risk for US users, and the difficulty US chipmakers are facing in getting “deemed export” licenses for Chinese nationals.

We delve deeper into a remarkably shallow and agenda-driven New York Times article by Nicole Perlroth and Scott Shane blaming NSA for Baltimore’s ransomware problem without ever asking why the city failed for two years to patch its systems. David Kris uses the story to take us into the Vulnerabilities Equities Process – and its flaws.

There may be a lot – or nothing – to the Navy email “spyware” story, but David points out just how many of today’s cyber issues it touches. With the added fillip of a “Go Air Force, Beat Navy” theme not usually sounded in cybersecurity stories.

Paul expands on what I have called Cheapfakes (as opposed to Deep Fakes) – the Pelosi video manipulated to make her sound impaired. And he manages to find something approaching good news in the advance of faked video – it may mean the end of (video) blackmail.

But not the end of “revenge porn” and revenge porn laws. I ask Gus Hurwitz whether those laws are actually protected by the Constitution, and the answer turns out to be highly qualified. But, surprisingly, media lawyers aren’t objecting that revenge porn laws that criminalize the dissemination of true facts are on a slippery slope to criminalizing news media. That is the argument they’re making about the expanded charges of espionage against Wikileaks founder Julian Assange. David offers his view of the pros and cons of the indictment.

And Gus closes us out with some almost unalloyed good news. Despite my suspicion of any bipartisan bill in the current climate, he insists that the Senate-passed anti-robocalling bill is a straight victory for the Forces of Good. But, he warns, the House could still screw things up by adding a private right of action along the lines of the Telephone Consumer Protection Act, which has provided the plaintiffs bar with an endless supply of cases without actually benefiting consumers.


Download the 265th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!


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

Episode 264: Unpacking the Supreme Court’s decision in Pepper v. Apple

Posted in China, European Union, International, Security Programs & Policies


We begin this episode with a quick tour of the Apple antitrust decision that pitted two Trump appointees against each other in a 5-4 decision. Matthew Heiman and I consider the differences in judging styles that produced the split and the role that 25 years of “platform billionaires” may have played in the decision.

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Episode 263: Turning the tables on Baker

Posted in China, International, Privacy Regulation, Security Programs & Policies


With apologies for the late post, Episode 263 of The Cyberlaw Podcast tells the sad tale of another US government leaker who unwisely trusted The Intercept not to compromise its source. As Nick Weaver points out, The Intercept also took forever to actually report on some of the material it received.

In other news, Brian Egan and Nate Jones agree that Israel broke no new ground in bombing the headquarters of Hamas’s rudimentary hacking operation during active hostilities.

Nick and I dig into the significance of China’s use of intrusion tools pioneered by NSA. We also question the New York Times’s grasp of the issue.

The first overt cyberattack on the US electric grid was a bust, I note, but that’s not much comfort.

How many years of being told “I’m washing my hair that night” should tell you you’re not getting anywhere? The FCC probably thought China Mobile should have gotten the hint after eight years of no action on its application to provide US service, but just in case the message didn’t get through, it finally pulled the plug last week.

Delegating to Big Social the policing of terrorist content has a surprising downside, as Nate points out. Sometimes the government or civil society need that data to make a court case.

We touch briefly on Facebook’s FTC woes and whether Sen. Hawley (R-MO) should be using the privacy stick to beat a company he’s mad at for other reasons. I reprise my longstanding view that privacy law is almost entirely about beating companies that you’re mad at for other reasons.


Download the 263rd Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed!

As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!


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