President Bill Clinton earned lasting notoriety for his explanation of why his statement denying a relationship with Monica Lewinsky was truthful (“it depends on what the meaning of the word ‘is’ is”). It is doubtful Justice Amy Coney Barrett’s majority opinion for the Supreme Court last week in Van Buren v. U.S. will earn as much ridicule from late-night comedians, despite putting so much questionable weight on a two-letter word (in this case, the word “so”). But the opinion does finally resolve an issue that has split lower courts and vexed employers, website operators, security researchers, and others for many years: whether the Computer Fraud and Abuse Act (CFAA) can be used to prosecute, or sue civilly, someone who accesses a computer with authorization, but uses that access for an improper purpose. The Court answered that question with a resounding, “No.” But the Court left unresolved a number of other questions, including what sorts of limits on access have to be transgressed in order to give rise to a CFAA violation.

The CFAA prohibits, among other things, intentionally accessing a computer “without authorization” or “exceed[ing] authorized access” and obtaining information. In Van Buren, a police officer had used his patrol car computer to access a law enforcement database to look up a license plate number in exchange for money from a private person who wanted information about a woman he had met at a strip club. The arrangement turned out to be an FBI sting, and after the officer used his valid credentials to look up the license plate number in the database, he was arrested and charged with violating the CFAA. The government alleged that the officer had exceeded his authorized access to the database by accessing it for an improper purpose—i.e., for personal use, in violation of police department policy. The officer was convicted and sentenced to 18 months in prison.

On appeal to the Eleventh Circuit, the officer argued that “exceeds authorized access” in the CFAA reaches only people who are authorized to access a computer, but then access information to which their authorized access does not extend. Several circuits have interpreted this clause in just this way. However, the Eleventh Circuit, like some others, adopted a broader view, holding that the clause also applies to someone who has authorization to access a computer but then uses that access for an inappropriate reason.

This broad interpretation has drawn a great deal of criticism, including by those who argue that it results in the criminalization of a great deal of everyday behavior. Anyone who violates a website’s terms of use (such as by using a pseudonym, or supplying a fake date of birth), or violates her company’s computer use policy by sending personal emails or composing personal documents on a workplace computer, would be violating the CFAA.

The Supreme Court cited such arguments as one reason the broad interpretation of “exceeds authorized access” is “implausib[le].” But the Court’s principal reason for adopting a narrow reading of the phrase turned on the word “so.” The CFAA defines “exceeds authorized access” as “access[ing] a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” The Court devoted several pages of linguistic analysis to explaining why the word “so” must be read as restricting the entire definition to persons who are authorized to access a computer, but are not entitled to use that access to obtain or alter certain information, and why the clause cannot be read as applying to people who are authorized to obtain or alter that information but then do so for a prohibited purpose. One might charitably say that this is all a very lawyerly reading of the phrase (as was said about Mr. Clinton’s exegesis of the meaning of “is”). But whatever the case, it is now the law.

Fortunately, the Court ended its opinion with a clearer enunciation of its interpretation of “exceeds authorized access”: “In sum, an individual ‘exceeds authorized access’ when he accesses a computer with authorization but then obtains information located in particular areas of the computer—such as files, folders, or databases—that are off limits to him.” This makes clear that one cannot violate the CFAA—and therefore be subjected to criminal prosecution or a civil suit—merely by using his authorized access to obtain information for an improper purpose. This may make it more difficult for employers to use the CFAA to go after rogue employees who steal company information for a competing firm, or for website operators to sue competitors who abuse their authorized access to a site’s content by scraping it or otherwise mining it for commercial advantage.

Nevertheless, the Court’s opinion leaves some significant questions unresolved, and therefore still leaves room for effectively using the CFAA in such situations. Notably, the Court explicitly leaves open the question of how a computer owner may limit access to particular information in order to be able to sue for violations of those limits. Some will likely misread the opinion as requiring technological barriers to access. But it may be enough to impose carefully worded limits via contractual or policy terms, as long as they are focused on prohibiting access to the information, not on prohibiting certain uses. It may also be enough to impose limits on access by certain means, while allowing access by other means. Thus, for example, a competitor might have authorization to access a website’s content as a regular user, but if the website’s terms prohibit scraping the same content via automated bots, then such scraping may still give rise to a CFAA violation.

So—while Van Buren will be widely read as limiting the ability of computer owners to use the CFAA as a legal weapon, the reality—for now, at least—is that companies can still use that statute to protect their information, as long as they give careful thought to the ways they limit access to it.

We don’t get far into my interview with the authors of a widely publicized Ransomware Task Force report, before I object that most of its recommendations are “boring” procedural steps that don’t directly address the ransomware scourge. That prompts a vigorous dialogue with Philip Reiner, the Executive Director of the Institute for Security and Technology (IST), the report’s sponsoring organization, from Megan Stifel, of the Global Cyber Alliance, and Chris Painter, of The Global Forum on Cyber Expertise Foundation. And we in fact find several new and not at all boring recommendations among the nearly 50 put forward in the report.

In the news roundup, Dmitri Alperovitch has an answer to my question, “Is Putin getting a handle on U.S. social media?” Not just Putin, but every other large authoritarian government is finding ways to bring Google, Twitter, and Facebook to heel. In Russia’s case, the method is first a token fine, then a gradual throttling of service delivery that makes domestic competitors look better in comparison to the Silicon Valley brand.

Mark MacCarthy handicaps the Epic v. Apple lawsuit. The judge is clearly determined to give both sides reason to fear that the case won’t go well. And our best guess is that Epic might get some form of relief but not the kind of outcome they hoped for.

Dmitri and I marvel at the speed and consensus around regulatory approaches to the Colonial Pipeline ransomware event. It’s highly likely that the attack will spur legislation mandating reports of cyber incidents (and without any liability protection) as well as aggressive security regulation from the agency with jurisdiction – TSA. I offer a cynical Washington perspective on why TSA has acted so decisively.

Mark and I dig into the signing and immediate court filing against Florida’s social media regulation attacking common content moderation issues. Florida will face an uphill fight, but neither of us is persuaded by the tech press’s claim that the law will be “laughed out of court.” There is a serious case to be made for almost everything in the law, with the exception of the preposterous (and probably severable) exemption for owners of Florida theme parks.

Dmitri revs up the DeHyping Machine for reports that the Russians responded to Biden administration sanctions by delivering another cyberpunch in the form of hijacked USAID emails.  It turns out that the attack was garden variety cyberespionage, that the compromise didn’t involve access to USAID networks, that it was launched before sanctions, and that it didn’t get very far.

Jordan Schneider explains the impact of S. government policy on the cellular-equipment industry, and the appeal of Open RAN as a way of end-running the current incumbents. U.S. industrial policy could be transformed by the shape-shifting Endless Frontier Act.

Jordan and Dmitri explain how. I ask whether we’re seeing a deep convergence on industrial policy on both sides of the Pacific, now that President XI has given a speech on tech policy that could have been delivered by half a dozen Republican or Democratic senators.

Finally, Dmitri reviews the bidding in cryptocurrency regulation both at the White House and in London.

In short hits, we cover:

  • The European Court of Human Rights decision squeezing but not quite killing GCHQ’s mass data interception programs and cooperation with the U.S. I offer a possible explanation for the court’s caution.
  • A court filing strongly suggesting that the Biden administration will not be abandoning a controversial Trump administration rule that requires visa applicants to register their social media handles with the U.S. government.  I speculate on why.
  • A WhatsApp decision not to threaten its users to get them to accept the company’s new privacy terms. Instead, I suspect, WhatsApp will annoy them into submission.
  • And, finally, a festival of EU competition law Brussels attacks on Silicon Valley, from to Germany and France.

And more!


Download the 364th Episode (mp3)


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The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.


Paul Rosenzweig kicks off the news roundup by laying out the New York Times’s brutal overview of the many compromises Tim Cook’s Apple has made with an increasingly oppressive Chinese government. There is no way to square Apple’s aggressive opposition to US national security measures with its quiet surrender to much more demanding Chinese measures. I suggest that the disparity could not be greater if Tim Cook were Dorian Gray and storing his portrait behind the Great Firewall. Paul, Jamil Jaffer, and I note the tension between Apple’s past claim that it could not legally share data with the Chinese government and its new claim that it solved the problem by turning its data over to a Chinese government-owned corporation.

Ransomware hasn’t stopped making news, Paul tells us, Irish hospitals with the latest to go down. Nate Jones assesses the likelihood (low) that governments will effectively ban the payment of ransomware demands. And Paul points out that, while cryptocurrency may be facilitating crime, at least it’s also warming the planet, as an entire American power plant is taken out of mothballs to power cryptocurrency mining operations.

Governments are increasingly cracking down on cryptocurrency, and Paul gives us one week of news in new regulation: China has reiterated its opposition to unregulated access to crypto.

The IRS is threatening action against unreported transactions in cryptocurrency.

And Hong Kong plans to restrict crypto exchanges to professional investors.

Another 60+ pages from the FISA court approving the executive branch’s section 702 procedures.

With Nate on the job, you don’t need to read it all, or rely on the ideologically motivated criticism of privacy groups. Nate tells us that in approving the 702 procedures the FISA court has much less leeway than a court usually does in reviewing federal agency action (with a hat tip to a good analysis by NSA alum George Croner). 

Jamil bemoans the enthusiasm sweeping Europe for sticking it to US (but not Chinese) tech companies under a variety of competition law theories.

Google has been fined just over €100 million by Italy’s antitrust watchdog for abuse of a dominant market position in Android auto apps.

Germany is readying big guns for an attack on Amazon’s market.

I point out that American policyholders seem to share this enthusiasm, at least judging from the questions the presiding judge in Epic v. Apple posed this week to Tim Cook.

Nate and I explore Apple’s apparent decision to let Parler back into the app store. (And, given the enthusiasm for regulating such dual-facing markets on antitrust grounds, that decision would be wise.) But Apple is still demanding that Parler block speech that Parler doesn’t think it should be blocking.

We wrap up with a few quick hits:

  • Looking for a cheap way to defeat ransomware?  Brian Krebs has a “might not work but what do you have to lose?” idea: install a Russian keyboard layout on your computer (although with my luck, the ransomware will translate all my files into Russian).
  • Andy Greenberg has a good retrospective on the seeds. OG supply chain hack: the Chinese theft of RSA’s core security.
  • Dangling the other shoe: The UK’s head of MI5 isn’t mincing words. Ken McCallum is accusing Facebook of giving a ‘free pass’ to terrorists by preparing to introduce end-to-end crypto on its messaging app. Sooner or later, this is going to end in tears. And we all agree that the Biden administration was lucky to persuade Matt Olsen to leave Uber to become head of DOJ’s National Security Division.

And More!


Download the 363rd 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 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 their institutions, clients, friends, families, or pets.


Our interview is with, Brandon Wales, acting head of the Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) and Jen Daskal, Deputy General Counsel for Cyber and Technology Law at DHS. We dig deep into the latest Executive Order on cybersecurity. There’s a lot to say. The EO is focused largely on how the federal civilian government protects its networks, and it is just short of revolutionary in overriding longstanding turf fights, almost all of which are resolved in favor of CISA – to the point where it seems clear that CISA is on its way to being the civilian agencies’ CISO, or Chief Information Security Office. This is clearly CISA’s moment. It is getting new authorities from the President and new money from Congress. Whether it can meet all the expectations that these things bring is the question.

We also touch on parts of the EO that will touch the private sector, from the determined push for breach and other incident reporting in federal contracts to the formation of a Cyber Safety Review Board to investigate private sector incidents.  I predict that the Board will need and will get subpoena power soon. Neither Brandon nor Jen takes the other side of that bet.

In the news, we get an update on the Colonial Pipeline ransomware attack from Nick Weaver and first-timer Betsy Cooper. Colonial has paid $5 million in ransom, gotten a bad decryption tool, and restarted operations anyway. Since it’s likely to end up as the second test case for the Cyber Security Review Board, Colonial may regret having waited five days to start sharing information with CISA.

Maury Shenk explains the 200-page Irish High Court decision allowing the Irish data protection regulator to begin an inquiry that could cut off its data exports to the United States. Facebook would love to forestall that day until EU-US talks on a new data export deal is done, but the Biden administration isn’t exactly making it a priority to bail out either Facebook or the US intelligence community, which has as much at stake in data flows as the companies.

One of the puzzles of recent weeks has been persistent but vague stories DHS wants more authority that to gather information from public postings on social media. Nick, Betsy, and I try to make sense of the story, and we’re not helped by the fact that much of the media and politicians have switched from condemning such intelligence operations to demanding them, and vice versa, since the Trump administration ended.

Nick can’t resist a story that leaves both bitcoin and Tor looking bad, so of course we cover the boom in Tor exit nodes configured to steal the cryptocurrency of Tor

Betsy covers the unanimous view of chip making and consuming companies that the federal government should subsidize chip making in the US. Industrial policy is making a comeback, we note, but Betsy reminds us there’s a reason it went away. *cough*Solyndra*cough*

Betsy seizes on the latest WhatsApp tactic to lament the willingness of data-driven tech companies to annoy us into submission.

Nick and I cross swords over Apple’s firing of Antonio García Martínez, author of Chaos Monkeys, in my view one of the funniest and most insightful Silicon Valley books of the last decade. Part of its appeal is Garcia Martinez’s relentless burning of every bridge in his past business and personal life.  How, you keep asking, can he recover from telling all those truths about Morgan Stanley, Facebook, Y Combinator, and AdTech? Turns out, he can’t. But it wasn’t any of those supposedly potent institutions that nailed him. Instead, it was his claim that the women of Silicon Valley are mostly “soft and weak, cosseted and naïve” and possessed of a “self-regarding entitlement feminism.”

Apple employees demanded that they be protected from Garcia Martinez, and he was summarily fired.  Way to go, Apple employees!  Nothing rebuts a stereotype of female softness and entitlement like demanding to be protected from someone who doesn’t share your feminism. (Nick thinks Garcia Martinez is a walking sexual harassment judgment. He didn’t like the book either.) The more interesting question is whether hiring Garcia Martinez shows just how determined Apple is to replace Facebook as Google’s main competition in the “leverage customer data to sell ads” business.

In quick hits, I revisit the claim that a Saudi prince hacked Jeff Bezos’s phone and turned his unexpurgated selfies over to the National Enquirer in order to suppress Washington Post publicity over the killing of Jamal Khashoggi.  That was all BS, it turns out, apparently designed to turn Bezos from an ordinary tawdry adulterer into a press freedom crusader.

And Nick draws our attention to Counterfit, a promising Microsoft tool for testing AI algorithms to find security flaws.

And more!


Download the 362nd Episode (mp3).

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 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 their institutions, clients, friends, families, or pets.

On May 12, 2021, President Biden signed a landmark Executive Order to improve and modernize the federal government’s cybersecurity infrastructure. The Executive Order comes in the wake of numerous cyber incidents targeting the United States, including the so-called SolarWinds, Microsoft Exchange, and Colonial Pipeline incidents. The Executive Order will directly affect government contractors, including companies that sell software to the government or provide IT services. More broadly, but less directly, the Executive Order is likely to influence the informal, and eventually formal, development of cybersecurity standards for software and hardware makers and providers of online services generally, even when the government is not a customer.

President Biden’s Executive Order takes the following steps:

  • Removing barriers to sharing threat information
    • The Executive Order helps facilitate the sharing of cyber threat and incident information between IT service providers and federal government agencies by (1) removing contractual barriers to such exchanges and (2) requiring the reporting of information about cyber incidents to federal agencies.
  • Strengthening federal government cybersecurity
    • The Executive Order requires the federal government to adopt cybersecurity best practices including “advance[ing] toward Zero Trust Architecture; accelerat[ing] movement to secure cloud services…central[izing] and streamlin[ing] access to cybersecurity data to drive analytics for identifying and managing cybersecurity threats; and invest[ing] in both technology and personnel to match these modernization goals.” As part of these efforts, federal agencies are ordered to “adopt multi-factor authentication and encryption for data at rest and in transit, to the maximum extent consistent with Federal records laws and other applicable laws.”
  • Enhancing software supply chain security
    • The Executive Order mandates the establishment of minimum-security standards for software sold to the federal government. In particular, the standards must address:
      • “Secure software development environments;
      • “Generating and, when requested by a purchaser, providing artifacts [e.g. data] that demonstrate conformance to the processes” implemented to ensure secure software development environments”;
      • “Employing automated tools, or comparable processes, to maintain trusted source code supply chains, thereby ensuring the integrity of the code”;
      • “Employing automated tools, or comparable processes, that check for known and potential vulnerabilities and remediate them, which shall operate regularly, or at a minimum prior to product, version, or update release”;
      • “Providing, when requested by a purchaser, artifacts of the execution of the tools and processes described [in the prior two bullets] and making publicly available summary information on completion of these actions, to include a summary description of the risks assessed and mitigated”;
      • “Maintaining accurate and up-to-date data, provenance (i.e., origin) of software code or components, and controls on internal and third-party software components, tools, and services present in software development processes, and performing audits and enforcement of these controls on a recurring basis”;
      • “Providing a purchaser a Software Bill of Materials (SBOM) for each product directly or by publishing it on a public website”;
      • “Participating in a vulnerability disclosure program that includes a reporting and disclosure process”;
      • “Attesting to conformity with secure software development practices”;
      • “Ensuring and attesting, to the extent practicable, to the integrity and provenance of open source software used within any portion of a product.”
    • The Executive Order also directs development of a pilot program to create a labeling system which would allow the government (and the public) to determine whether software was developed securely.
  • Establishing a Cybersecurity Safety Review Board
    • The Board, which is to be led by individuals from the government and the private sector, will convene following major cybersecurity incidents to review and assess such incidents, mitigation, and response efforts. This idea has been likened to the National Transportation Safety Board (NTSB) for transportation incidents.
  • Standardizing the federal government’s playbook for responding to cybersecurity vulnerabilities and incidents
    • The Executive Order promotes the implementation of “standardized response processes [to] ensure a more coordinated and centralized cataloging of incidents and tracking of agencies’ progress toward successful responses.” Various federal agencies are required to coordinate to “develop a standard set of operational procedures (playbook) to be used in planning and conducting a cybersecurity vulnerability and incident response activity respecting [Federal Civilian Executive Branch] Information Systems.”
  • Improving detection of cybersecurity vulnerabilities and incidents on federal government networks
    • The Executive Order requires the federal government to “employ all appropriate resources and authorities to maximize the early detection of cybersecurity vulnerabilities and incidents on its networks.” Such measures must “include increasing the Federal Government’s visibility into and detection of cybersecurity vulnerabilities and threats to agency networks in order to bolster the Federal Government’s cybersecurity efforts.”
  • Enhancing the federal government’s investigative and remediation capabilities
    • The Executive Order requires the formulation of “policies for agencies to establish requirements for logging, log retention, and log management.”
  • Introducing National Security System Requirements
    • The Executive Order mandates the application of the requirements set forth in the Order to National Security Systems (i.e., non-civilian systems).

The Executive Order constitutes a major step forward in strengthening cyber defenses against the sorts of attacks that have bedeviled government agencies and private companies for decades now. Government contractors will need to comply with the new requirements that will result from the Executive Order. But even more broadly, the Executive Order and the rules that flow from it will have an impact on all companies by creating new expectations for threat and incident reporting and new standards (whether informal or formal) for cybersecurity.

Bruce Schneier joins us to talk about AI hacking in all its forms. He’s particularly interested in ways AI will hack humans, essentially preying on the rough rules of thumb programmed into our wetware – that big-eyed, big-headed little beings are cute and need to have their demands met or that intimate confidences should be reciprocated. AI may not even know what it’s doing, since machines are famous for doing what works unless there’s a rule against it. Bruce is particularly interested in law-hacking – finding and exploiting unintended consequences buried in the rules in the U.S. Code. If any part of that code will lend itself to AI hacking, Bruce thinks, it’s the tax code (insert your favorite tax lawyer joke here). It’s a bracing view of a possible near-term future.

In the news, Nick Weaver and I dig into the Colonial Pipeline ransomware attack and what it could mean for more aggressive cybersecurity action in Washington than the Biden administration was contemplating just last week as it was pulling together an executive order that focused heavily on regulating government contractors.

Nate Jones and Nick examine the stalking flap that is casting a cloud over Apple’s introduction of AirTags.

Michael Weiner takes us through a quick tour of all the pending U.S. government antitrust lawsuits and investigations against Big Tech. What’s striking to me is how much difference there is in the stakes (and perhaps the prospects for success) depending on the company in the dock. Facebook faces a serious challenge but has a lot of defenses. Amazon and Apple are being attacked on profitable but essentially peripheral business lines. And Google is staring at existential lawsuits aimed squarely at its core business.

Nate and I mull over the Russian proposal for a UN cybercrime proposal. The good news is that stopping progress in the UN is usually even easier than stopping legislation in Washington.

Nate and I also puzzle over ambiguous leaks about what DHS wants to do with private firms as it tries to monitor extremist chatter online. My guess: This is mostly about wanting the benefit of anonymity or a fake persona while monitoring public speech.

And then Michael takes us into the battle between Apple and Fortnite over access to the app store without paying the 30% cut demanded by Apple. Michael thinks we’ve mostly seen the equivalent of trash talk at the weigh-in so far, and the real fight will begin with the economists’ testimony this week.

Nick indulges a little trash talk of his own about the claim that Apple’s app review process provides a serious benefit to users, citing among other things the litigation-driven disclosure that Apple never send emails to users of the 125 million buggered apps it found a few years back.

Nick and I try to make sense of stories that federal prosecutors in 2020 sought phone records for three Washington Post journalists as part of an investigation into the publication of classified information that occurred in 2017.

I try to offer something new about the Facebook Oversight Board’s decision on the suspension of President Trump’s account. To my mind, a telling and discrediting portion of the opinion reveals that some of the board members thought that international human rights law required more limits on Trump’s speech – and they chose to base that on the silly notion that calling the coronavirus a Chinese virus is racist. Anyone who has read Nicholas Wade’s careful article knows that there’s lots of evidence the virus leaked from the Wuhan virology lab. If any virus in the last hundred years deserves to be named for its point of origin, then, this is it. Nick disagrees.

Nate previews an ambitious task force plan on tackling ransomware. We’ll be having the authors on the podcast soon to dig deeper into its nearly 50 recommendations.

Signal is emerging a Corporate Troll of the Year, if not the decade. Nick explains how, fresh from trolling Cellebrite, Signal took on Facebook by creating a bevy of personalized Instagram ads that take personalization to the Next Level.

Years after the fact, the New York Attorney General has caught up with the three firms that generated fake comments opposing the FCC’s net neutrality rollback. They’ll be paying fines. But I can’t help wondering why anyone thinks it’s useful to think about proposed rules by counting the number of postcards and emails that shout “yes” or “no” but offer no analysis.


Download the 361st Episode (mp3).

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 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 their institutions, clients, friends, families, or pets.

Our interview is with Kevin Roose, author of Futureproof: 9 Rules for Humans in the Age of Automation debunks most of the comforting stories we use to anaesthetize ourselves to the danger that artificial intelligence and digitization poses to our jobs. Luckily, he also offers some practical and very personal ideas for how to avoid being caught in the oncoming robot apocalypse.

In the news roundup, Dmitri Alperovitch and I take a few moments to honor Dan Kaminsky, an extraordinary internet security and even more extraordinarily decent man. He died too young, at 42, as Nicole Perlroth demonstrates in one of her career-best articles.

Maury Shenk and Mark MacCarthy lay out the EU’s plan to charge Apple with anti-competitive behaviour in running its app store.

Under regulation-friendly EU competition law, the more austere U.S. version, it sure looks as though Apple is going to have trouble escaping unscathed.

Mark and I duke it out over Gov. DeSantis’s Florida bill on content moderation reform.

We agree that it will be challenged as a violation of the First Amendment and as preempted by federal section 230. Mark thinks it will fail that test. I don’t, especially if the challenge ends up in the Supreme Court, where Justice Thomas at least has already put out the “Welcome” mat.

Dmitri and I puzzle over the statement by top White House cyber official Anne Neuberger that the U.S. reprisals against Russia are so far not enough to deter further cyberattacks. We decide it’s a “Kinsley gaffe” – where a top official inadvertently utters an inconvenient truth.

This Week in Information Operations: Maury explains that China may be hyping America’s racial tensions not as a tactic to divide us but simply because it’s an irresistible comeback to U.S. criticisms or Chinese treatment of ethnic minorities. And Dmitri explains why we shouldn’t be surprised at Russia’s integrated use of hacking and propaganda. The real question is why the US has been so bad at the same work.

In shorter stories:

  • Mark covers the slooow rollout of an EU law forcing one-hour takedowns of terrorist content
  • Dmitri tells us about the evolution of ransomware into, full-service doxtortion as sensitive files of the Washington C. Police Department are leaked online
  • Dmitri also notes the inevitability of more mobile phone adtech tracking scandals, such as the compromise of US military operations
  • Maury and I discuss the extent to which China’s internet giants find themselves competing, not for consumers, but for government favor, as China uses antitrust law to cement its control of the tech sector
  • Finally, Dmitri and I unpack the latest delay in DOD’s effort to achieve cybersecurity maturity through regulatory-style compliance, an effort Dmitri believes is doomed
  • And more!


Download the 360th 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 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 their institutions, clients, friends, families, or pets.

Brian Egan hosts this episode of the podcast, as Stewart Baker is hiking the wilds of New Hampshire with family. Nick Weaver joins the podcast to discuss the week in ransomware, as DOJ gets serious, and the gangs do too. Justice has a new ransomware task force,  and the gangs have asked  for $50 million not to disclose Apple product plans compromised during a breach of Quanta.

Paul Hughes gives us details on the EU’s proposal for regulating the deployment of artificial intelligence and facial recognition technology. Brian compares the EU work to the FTC’s own principles for achieving truth and fairness while using AI.

Nick finds a lot to like in Sen. Wyden’s ‘Fourth Amendment Is Not For Sale Act,’ which would ban Clearview and government purchases of location data without a warrant.

Brian summarizes the Biden administration’s series of cyber initiatives for critical infrastructure sectors. Nick can’t resist the high-grade trolling on display in the squabble between Signal and Cellebrite. Brian evaluates the administration’s sanctions on Russia for, among other things, the SolarWinds hack.

And Nick covers the ultimate consumer supply chain attack ultimate consumer supply chain attack — on password managers. Nick’s advice: “Amateurs keep their passwords in their drawers. Pros keep their passwords in their wallets.”

Download the 359th 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 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 their institutions, clients, friends, families, or pets.

Our interview is with Mark Montgomery and John Costello, both staff to the Cyberspace Solarium Commission. The Commission, which issued its main report more than a year ago, is swinging through the pitch, following up with new white papers, draft legislative language, and enthusiastic advocacy for its recommendations in Congress, many of which were adopted last year. That makes it the most successful of the many cybersecurity commissions that have come and gone in Washington. And it’s not done yet. Mark and John review several of the most important legislative proposals the Commission will be following this year. I don’t agree with all of them, but they are all serious ideas and it’s a good bet that a dozen or more could be adopted in this Congress.

In the news roundup, David Kris and I cover the FBI’s use of a single search warrant to remove a large number of web shells from computers infected by China’s irresponsible use of its access to Microsoft Exchange. The use of a search (or, more accurately, a seizure warrant) is a surprisingly far-reaching interpretation of federal criminal Rule 41. But despite valiant efforts, David is unable to disagree with my earlier expressed view that the tactic is lawful.

Brian Egan outlines what’s new in the Biden administration’s sanctions on Russia for its SolarWinds exploits. The short version: While.some of the sanctions break new ground, as with Russian bonds, they do so cautiously.

Paul Rosenzweig, back from Costa Rica, unpacks a hacking story that has everything – terrorism, the FBI, Apple, private sector hacking, and litigation. Short version: we now know the private firm that saved Apple from the possibility of an order to hack its own phone. It’s an Australian firm named Azimuth that apparently only works for democratic governments but that is nonetheless caught up in Apple’s bully-the-cybersecurity-researchers litigation campaign.

Gus Hurwitz talks to us about the seamy side of content moderation (or at least on seamy side) – the fight against “coordinated inauthentic behaviour.”

In quicker takes, Paul gives us a master class in how to read the intel community’s Annual Threat Assessment. David highlights what may be the next Chinese telecom manufacturing target, at least for the GOP, after Huawei and ZTE. I highlight the groundbreaking financial industry breach notification rule that has finished now the comment period and is moving toward adoption. And Gus summarizes the state of Silicon Valley antitrust legislation –  everyone has a bill – so no one is likely to get a bill.

And more!

Download the 358th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunesGoogle PlaySpotifyPocket 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 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 their institutions, clients, friends, families, or pets.

They used to say that a conservative was a liberal who’d been mugged. Today’s version is that a conservative who’s comfortable with business regulation is a conservative who’s been muzzled by Silicon Valley. David Kris kicks off this topic by introducing Justice Thomas’s opinion in a case over Trump’s authority to block users he didn’t like. The case was made thoroughly moot by both the election and Twitter’s blocking of Trump, but Justice Thomas wrote separately to muse on the ways in which Twitter’s authority to block users could be regulated by treating the company as a common carrier or public accommodation. David sees a trend among conservative jurists to embrace limits on Big Social’s authority to suppress speech.

I recount my experience being muzzled by LinkedIn, which would not let me link to a new Daily Mail story about the Hunter Biden laptop and say, “The social media giants that won’t let you say the 2020 election was rigged are the people who did their best to rig it: The Hunter Biden laptop was genuine and scandalous according to the Daily Mail.” To my mind, this is Big Social protecting its own business interests by suppressing a story that could convince people that the industry has too much power over our national dialogue and our elections. (I mocked LinkedIn by posting 5 variants of my original post, all making the same point in slightly different ways. You can see this on my LinkedIn account result)

But my view that we should not let five or six Silicon Valley owners take over our national dialogue is challenged by Jamil Jaffer, a friend and conservative who is appalled at my deviation from Republican antiregulatory orthodoxy and first amendment doctrine. It’s a great conservative catfight that mirrors the much greater catfight now under way in the Republican party.

Elsewhere in the news roundup, Jordan Schneider and David dig into the claims that China has built advanced weapons systems with the help of American chip designers and Taiwanese fabs. The accusation has led the Biden administration to slap export controls on several Chinese firms. Whether this will work without more aggressive U.S. controls on, say, foreign fabs serving those firms is open to question.

More to the point, it raises questions about long term U.S. industrial policy. David notes that one answer, the bipartisan “Endless Frontier Act,” is gaining some momentum. (I understand the motivation but question the execution.) We also touch on the sad story of Intel’s recent missteps, and the opportunity that industrial policy has created for GlobalFoundries’ IPO.

Meanwhile Jamil takes on AdTech espionage, while U.S. Senators ask Digital-Ad auctioneers to name foreign clients amid national-security concerns.

We all weigh in on the administration’s cyber picks, announced over the weekend. The unanimous judgment is that Chris Inglis, Jen Easterly, and Rob Silvers are good picks – and, remarkably, ended up in the right jobs.

In shorter hits, David and I ponder Twitch’s unusual decision to start punishing people on line for misdeeds offline – misdeeds that Twitch will investigate itself. While neither of us are comfortable with the decision, including the effort to do privately what we pay cops and courts to do publicly, but there is more justification for the policy in some cases (think child sexual abuse) than might be apparent at first glance.

I tell the story of the Italian authorities identifying and arresting someone trying to hire a hitman using cryptocurrency and the dark web. As far as I know, successful cryptocurrency hitmen remain as rare as unicorns

David suggests that I should be glad not to live in Singapore, where the penalty for information the establishment doesn’t like is a criminal libel judgment that I’d be forced to crowdfund like Singapore’s government critics. I note that American sites like GoFundMe and Patreon have already imposed ideological screens that mean I wouldn’t be able to crowdfund my defense against Big Social.

And, for This Week in Data Breaches, I note the new tactic of ransomware gangs trying to pressure their victims to pay by threatening the victims’ customers with doxxing plus the remarkable phenomenon of half-billion-user data troves that the source companies say are not really the result of network breaches and so not disclosable.

And more!

Download the 357th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunesGoogle PlaySpotifyPocket 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 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 their institutions, clients, friends, families, or pets.