There’s a fine line between legislation addressing deepfakes and legislation that is itself a deep fake. Nate Jones reports on the only federal legislation addressing the problem so far. I claim that it is well short of a serious regulatory effort – and pretty close to a fake law.

In contrast, India seems serious about imposing liability on companies whose unbreakable end-to-end crypto causes harm, at least to judge from the howls of the usual defenders of such crypto. David Kris explains how the law will work. I ask why Silicon Valley gets to impose the externalities of encryption-facilitated crime on society without consequence when we’d never allow tech companies to say that society should pick up the tab for their pollution because their products are so cool. In related news, the FBI may be turning the Pensacola military terrorism attack into a slow-motion replay of the San Bernardino fight with Apple, this time with more top cover.


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We devote episode 100 to “section 702” intelligence – the highly productive counterterrorism program that collects data on foreigners from data stored on US servers.  What’s remarkable about the program is its roots:  President Bush’s decision to ignore the clear language of FISA and implement collection without judicial approval.  That decision has now been ratified by Congress – and will be ratified again in 2017 when the authority for it ends.  But what does it say about the future of intelligence under law that our most productive innovation in intelligence only came about because the law was broken?  Our guest for the episode, David Kris, thinks that President Bush might have been able to persuade Congress to approve the program in 2001 if he’d asked.  David may be right; he is a former Assistant Attorney General for National Security, the coauthor of the premier sourcebook on intelligence under law, “National Security Investigations & Prosecutions,” and the General Counsel of Intellectual Ventures.  But what I find surprising is how little attention has been paid to the question.  How about it?  Is George Bush to FISA what Abraham Lincoln was to habeas corpus?

My interview with David leaves Lincoln to the history books and instead focuses entirely on section 702.  David lays out the half-dozen issues likely to be addressed during the debate over reauthorization, including the risk that the legislation will attract efforts to limit overseas signals intelligence, now governed mainly by Executive Order 12333.  He then pivots to the issues he thinks Congress should grapple with but probably won’t – from the growing ambiguity of location as a proxy for US citizenship to the failure of current intelligence law to adequately extract intelligence from the technologies that have emerged since 9/11, particularly social media and advertising technology.
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