The Cyberlaw Podcast kicks off 2023 by staring directly into the sun(set) of Section 702 authorization. The entire panel, including guest host Brian Fleming and guests Michael Ellis and David Kris, debates where things could be headed this year as the clock is officially ticking on FISA Section 702 reauthorization . Although there is agreement that a straight reauthorization is unlikely in today’s political environment, the ultimate landing spot for Section 702 is very much in doubt and a “game ...
Jan 18, 2023•57 min
Our first episode for 2023 features Dmitri Alperovitch, Paul Rosenzweig, and Jim Dempsey trying to cover a months’ worth of cyberlaw news. Dmitri and I open with an effort to summarize the state of the tech struggle between the U.S. and China. I think recent developments show the U.S. doing better than expected. U.S. companies like Facebook and Dell are engaged in voluntary decoupling as they imagine what their supply chain will look like if the conflict gets worse. China, after pouring billions...
Jan 10, 2023•59 min
This bonus episode is an interview with Josephine Wolff and Dan Schwarcz , who along with Daniel Woods have written an article with the same title as this post . Their thesis is that breach lawyers have lost perspective in their no-holds-barred pursuit of attorney-client privilege to protect the confidentiality of forensic reports that diagnose the breach. Remarkably for a law review article, it contains actual field research. The authors interviewed all the players in breach response, from the ...
Dec 20, 2022•40 min
It’s been a news-heavy week, but we have the most fun in this episode with ChatGPT. Jane Bambauer , Richard Stiennon, and I pick over the astonishing number of use cases and misuse cases disclosed by the release of ChatGPT for public access. It is talented—writing dozens of term papers in seconds . It is sociopathic—the term papers are full of falsehoods, down to the made-up citations to plausible but nonexistent New York Times stories . And it has too many lawyers—Richard’s request that it prov...
Dec 13, 2022•1 hr 1 min
This episode of the Cyberlaw Podcast delves into the use of location technology in two big events—the surprisingly outspoken lockdown protests in China and the Jan. 6 riot at the U.S. Capitol. Both were seen as big threats to the government, and both produced aggressive police responses that relied heavily on government access to phone location data. Jamil Jaffer and Mark MacCarthy walk us through both stories and respond to the provocative question, what’s the difference? Jamil’s answer (and mi...
Dec 06, 2022•50 min
We spend much of this episode of the Cyberlaw Podcast talking about toxified technology – new tech that is being demonized for a variety of reasons. Exhibit One, of course, is “spyware,” essentially hacking tools that allow governments to access phones or computers otherwise closed to them, usually by end-to-end encryption. The Washington Post and the New York Times have led a campaign to turn NSO’s Pegasus tool for hacking phones into radioactive waste. Jim Dempsey, though, reminds us that not ...
Nov 29, 2022•41 min
The Cyberlaw Podcast leads with the legal cost of Elon Musk’s anti-authoritarian takeover of Twitter. Turns out that authority figures have a lot of weapons, many grounded in law, and Twitter is at risk of being on the receiving end of those weapons. Brian Fleming explores the apparently unkillable notion that the Committee on Foreign Investment in the U.S. (CFIUS) should review Musk’s Twitter deal because of a relatively small share that went to investors with Chinese and Persian Gulf ties. It ...
Nov 22, 2022•39 min
We open this episode of the Cyberlaw Podcast by considering the (still evolving) results of the 2022 midterm election. Adam Klein and I trade thoughts on what Congress will do. Adam sees two years in which the Senate does nominations, the House does investigations, and neither does much legislation—which could leave renewal of the critically important intelligence authority, Section 702 of the Foreign Intelligence Surveillance Act (FISA), out in the cold. As supporters of renewal, we conclude th...
Nov 15, 2022•1 hr 6 min
The war that began with the Russian invasion of Ukraine grinds on. Cybersecurity experts have spent much of 2022 trying to draw lessons about cyberwar strategies from the conflict. Dmitri Alperovitch takes us through the latest lessons, cautioning that all of them could look different in a few months, as both sides adapt to the others’ actions. David Kris joins Dmitri to evaluate a Microsoft report hinting that China may be abusing its recent edict requiring that software vulnerabilities be repo...
Nov 08, 2022•49 min
You heard it on the Cyberlaw Podcast first, as we mash up the week’s top stories: Nate Jones commenting on Elon Musk’s expected troubles running Twitter at a profit and Jordan Schneider noting the U.S. government’s creeping, halting moves to constrain TikTok’s sway in the U.S. market. Since Twitter has never made a lot of money, even before it was carrying loads of new debt, and since pushing TikTok out of the U.S. market is going to be an option on the table for years, why doesn’t Elon Musk pos...
Nov 01, 2022•44 min
This episode features Nick Weaver , Dave Aitel and I covering a Pro Publica story (and forthcoming book ) on the difficulties the FBI has encountered in becoming the nation’s principal resource on cybercrime and cybersecurity. We end up concluding that, for all its successes, the bureau’s structural weaknesses in addressing cybersecurity are going to haunt it for years to come. Speaking of haunting us for years, the effort to decouple U.S. and Chinese tech sectors continues to generate news. Nic...
Oct 25, 2022•41 min
David Kris opens this episode of the Cyberlaw Podcast by laying out some of the massive disruption that the Biden Administration has kicked off in China’s semiconductor industry— and its Western suppliers . The reverberations of the administration’s new measures will be felt for years, and the Chinese government’s response, not to mention the ultimate consequences, remains uncertain. Richard Stiennon, our industry analyst, gives us an overview of the cybersecurity market, where tech and cyber co...
Oct 18, 2022•49 min
It’s been a jam-packed week of cyberlaw news, but the big debate of the episode is triggered by the White House blueprint for an AI Bill of Rights . I’ve just released a long post about the campaign to end “AI bias” in general, and the blueprint in particular. In my view, the bill of rights will end up imposing racial and gender (and intersex!) quotas on a vast swath of American life. Nick Weaver argues that AI is in fact a source of secondhand racism and sexism, something that will not be fixed...
Oct 12, 2022•56 min
We open today’s episode by teasing the Supreme Court’s decision to review whether section 230 protects big platforms from liability for materially assisting terror groups whose speech they distribute (or even recommend). I predict that this is the beginning of the end of the house of cards that aggressive lawyering and good press have built on the back of section 230. Why? Because Big Tech stayed out of the Supreme Court too long. Now, just when section 230 gets to the Court, everyone hates Sili...
Oct 04, 2022•50 min
This episode features a much deeper, and more diverse, examination of the Fifth Circuit decision upholding Texas’s social media law. We devote the last half of the episode to a structured dialogue about the opinion between Adam Candeub and Alan Rozenshtein . Both have written about it already, Alan critically and Adam supportively . I lead off, arguing that, contrary to legal Twitter’s dismissive reaction, the opinion is a brilliant and effective piece of Supreme Court advocacy. Alan thinks that...
Sep 27, 2022•50 min
The big news of the week was a Fifth Circuit decision upholding Texas social media regulation law. It was poorly received by the usual supporters of social media censorship but I found it both remarkably well written and surprisingly persuasive. That does not mean it will survive the almost inevitable Supreme Court review but Judge AndyOldham wrote an opinion that could be a model for a Supreme Court decision upholding Texas law. The big hacking story of the week was a brutal takedown of Uber , ...
Sep 20, 2022•1 hr
This is our return-from-hiatus episode. Jordan Schneider kicks things off by recapping passage of a major U.S. semiconductor-building subsidy bill, while new contributor Brian Fleming talks with Nick Weaver about new regulatory investment restrictions and new export controls on (artificial Intelligence (AI) chips going to China . Jordan also covers a big corruption scandal arising from China’s big chip-building subsidy program, leading me to wonder when we’ll have our version. Brian and Nick cov...
Sep 07, 2022•1 hr 14 min
Just when you thought you had a month free of the Cyberlaw Podcast, it turns out that we are persisting, at least a little. This month we offer a bonus episode, in which Dave Aitel and I interview Michael Fischerkeller, one of three authors of "Cyber Persistence Theory: Redefining National Security in Cyberspace." The book is a detailed analysis of how cyberattacks and espionage work in the real world—and a sharp critique of military strategists who have substituted their models and theories for...
Aug 16, 2022•52 min
As Congress barrels toward an election that could see at least one house change hands, efforts to squeeze big bills into law are mounting. The one with the best chance (and better than I expected) would drop $52 billion in cash and a boatload of tax breaks on the semiconductor industry. Michael Ellis points out that this is industrial policy without apology, and a throwback to the 1980s, when the government organized SEMATECH, a name derived from “Semiconductor Manufacturing Technology” to shore...
Jul 26, 2022•43 min
Kicking off a packed episode, the Cyberlaw Podcast calls on Megan Stifel to cover the first Cyber Safety Review Board (CSRB) Report. The CSRB does exactly what those of us who supported the idea hoped it would do—provide an authoritative view of how the Log4J incident unfolded along with some practical advice for cybersecurity executives and government officials. Jamil Jaffer tees up the second blockbuster report of the week, a Council on Foreign Relations study called “ Confronting Reality in C...
Jul 19, 2022•1 hr
Dave Aitel introduces a deliciously shocking story about lawyers as victims and—maybe—co-conspirators in the hacking of adversaries’ counsel to win legal disputes. The trick, it turns out, is figuring out how to benefit from hacked documents without actually dirtying one’s hands with the hacking. And here too, a Shakespearean Henry (II this time) has the answer: hire a private investigator and ask “Will no one rid me of this meddlesome litigant?” Before you know it, there’s a doxing site full of...
Jul 12, 2022•47 min
Jul 06, 2022•37 min
It’s that time again on the Congressional calendar. All the big, bipartisan tech initiatives that looked so good a few months ago are beginning to compete for time on the floor like fat men desperate to get through a small door. And tech lobbyists are doing their best to hinder the bills they hate while advancing those they like. We open the Cyberlaw Podcast by reviewing a few of the top contenders. Justin (Gus) Hurwitz tells us that the big bipartisan compromise on privacy is probably dead for ...
Jun 28, 2022•54 min
This episode of the Cyberlaw Podcast begins by digging into a bill more likely to transform tech regulation than most of the proposals you’ve actually heard of—a bipartisan effort to repeat U.S. Senator John Cornyn’s bipartisan success in transforming the Committee on Foreign Investment in the United States (CFIUS) four years ago. The new bill holds a mirror up to CFIUS, Matthew Heiman reports. Where CFIUS regulates inward investment from adversary nation, the new proposal will regulate outward ...
Jun 22, 2022•46 min
This bonus episode of the Cyberlaw Podcast is an interview with Amy Gajda, author of “ Seek and Hide: The Tangled History of the Right to Privacy .” Her book is an accessible history of the often obscure and sometimes “curlicued” interaction between the individual right to privacy and the public’s (or at least the press’s) right to know. Gajda, a former journalist, turns what could have been a dry exegesis on two centuries of legal precedent into a lively series of stories behind the case law. A...
Jun 20, 2022•29 min
Francisco last week at the Rivest-Shamir-Adleman (RSA) conference. We summarize what they said and offer our views of why they said it. Bobby Chesney, returning to the podcast after a long absence, helps us assess Russian warnings that the U.S. should expect a “military clash” if it conducts cyberattacks against Russian critical infrastructure. Bobby, joined by Michael Ellis sees this as a routine Russian PR response to U.S. Cyber Command and Director, Paul M. Nakasone’s talk about doing offensi...
Jun 15, 2022•48 min
If you’ve been worrying about how a leaky U.S. government can possibly compete with China’s combination of economic might and autocratic government, this episode of the Cyberlaw Podcast has a few scraps of good news. The funniest, supplied by Dave Aitel, is the tale of the Chinese gamer who was so upset at the online performance of China’s tanks that he demanded an upgrade. When it didn’t happen, he bolstered his argument by leaking apparently classified details of Chinese tank performance. I su...
Jun 08, 2022•45 min
At least that’s the lesson that Paul Rosenzweig and I distill from the recent 11th Circuit decision mostly striking down Florida’s law regulating social media platforms’ content “moderation” rules . We disagree flamboyantly on pretty much everything else—including whether the court will intervene before judgment in a pending 5th Circuit case where the appeals court stayed a district court’s injunction and allowed Texas’s similar law to remain in effect. When it comes to content moderation, Silic...
Jun 01, 2022•53 min
This week’s Cyberlaw Podcast covers efforts to pull the Supreme Court into litigation over the Texas law treating social media platforms like common carriers and prohibiting them from discriminating based on viewpoint when they take posts down. I predict that the court won’t overturn the appellate decision staying an unpersuasive district court opinion. Mark MacCarthy and I both think that the transparency requirements in the Texas law are defensible, but Mark questions whether viewpoint neutral...
May 24, 2022•1 hr 7 min
Is the European Union (EU) about to rescue the FBI from Going Dark? Jamil Jaffer and Nate Jones tell us that a new directive aimed at preventing child sex abus e might just do the trick, a position backed by people who’ve been fighting the bureau on encryption for years . The Biden administration is prepping to impose some of the toughest sanctions ever on Chinese camera maker Hikvision, Jordan Schneider reports. No one is defending Hikvision’s role in China’s Uyghur policy, but I’m skeptical th...
May 17, 2022•1 hr 5 min
