Our interview in this episode is with Glenn Gerstell, freed at last from some of the constraints that come with government service. We cover the Snowden leaks, how private and public legal work differs (hint: it’s the turf battles), Cyber Command, Russian election interference, reauthorization of FISA, and the daunting challenges the US (and its Intelligence Community) will face as China’s economy begins to reinforce its global security ambitions.


Continue Reading Episode 304: Unfiltered: An interview with NSA’s former general counsel

This episode features a lively (and – fair warning – long) interview with Daphne Keller, Director of the Program on Platform Regulation at Stanford University’s Cyber Policy Center. We explore themes from her recent paper on regulation of online speech. It turns out that more or less everyone has an ability to restrict users’ speech online, and pretty much no one has both authority and an interest in fostering free-speech values. The ironies abound: Conservatives may be discriminated against, but so are Black Lives Matter activists. In fact, it looks to me as though any group that doesn’t think it’s the victim of biased content moderation would be well advised to scream as loudly about censorship or the others for fear of losing the victimization sweepstakes. Feeling a little like a carny at the sideshow, I serve up one solution for biased moderation after another, and Daphne methodically shoots them down. Transparency? None of the companies is willing, and the government may have a constitutional problem forcing them to disclose how they make their moderation decisions. Competition law? A long haul, and besides, most users like a moderated Internet experience. Regulation? Only if we take the First Amendment back to the heyday of broadcast regulation. As a particularly egregious example of foreign governments and platforms ganging up to censor Americans, we touch on the CJEU’s insufferable decision encouraging the export of European defamation law to the US – with an extra margin of censorship to keep the platform from any risk of liability. I offer to risk my Facebook account to see if that’s already happening.


Continue Reading Episode 302: Will the First Amendment Kill Free Speech in America?