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Stewart Baker
Former government official now practicing law
Recent Activity
Everybody’s a critic, and everybody’s a censor, at least if you judge by today’s episode: Maury Shenk tells us the European Court of Justice will soon rule on its authority to censor what Americans read. Markham Erickson discusses the Ninth Circuit decision upholding national security letter gag orders. And Maury says that China is getting impressively good at deleting images it doesn’t like from citizens’ phones in real time. In other news, Congressional sanctions on Russia look like a done deal; Anthony Rapa explains (contra the NYT) that the sanctions weren’t watered down in the House – and the fuss they’re likely to cause among our European trading partners. Speaking of sanctions, how long before Putin decides to sanction the extended Trump family by going after their property, either with legal decrees or illegal hacks? The Trump hotels are already prime targets for credit card hacks; adding doxing and bricking to the mix wouldn’t be hard. In fact, that’s a lesson Hollywood seems to have absorbed. To keep from getting hacked a la Sony, it looks as though other studios are airbrushing Vladimir Putin from their upcoming films. Meanwhile, Reuters and others report that Silicon Valley’s Big Tech seems to... Continue reading
Posted yesterday at Skating on Stilts
This episode is dominated by IT procurement news. And it’s as irresistible as a twelve-car pileup on the Beltway. We open the news with an exploration of the federal de-listing of Kaspersky Labs, and how seriously government contracts lawyers take such an action (h/t to Michael Mutek for that). Then, in the interview, Eric Hysen, formerly of the DHS Digital Service, lays out his view of how DHS’s effort to bring agility and speed to big IT contracts came a cropper, with plenty of color commentary from procurement law guru, Michael Mutek. If you care about reforming federal IT purchasing (and you should), this interview is a cautionary tale. In other news, as Steptoe summer associate Quentin Johnson lays out, the Knight First Amendment Institute has brought a lawsuit to declare @realDonaldTrump a public forum from which trolls and griefers may never be excluded. Gus Hurwitz overcomes his inclination to snark and instead treats the claim seriously, which only makes it sound more ridiculous. Still, I’m looking forward to seeing White House press briefings moved to the Rose Bowl. Alan Cohn and I note that Booz Allen has come up with the best explanation yet for NotPetya’s weirdly self-defeating ransomware... Continue reading
Posted 5 days ago at Skating on Stilts
In this episode, we interview Jim Miller, co-chair of a Defense Science Board panel that reported on how the US is postured for cyberconflict and the importance of deterrence. The short answer: deterring cyberconflict is important because our strategic cyberconflict posture sucks. The DSB report is thoughtful, detailed, and troubling. Jim Miller manages to convey its message with grace, good humor, and clarity. In the news, Brian Egan and I find ourselves unable to turn away from the Trump-Putin meeting in Warsaw. Bottom line: by raising concerns with election hacking, Trump did and said more or less what any President would have said and done – except he failed to stick the landing with a self-serving debrief. Even the joint computer security unit comes in for some surprising, if faint, praise. File this under dog bites man: Europeans are beating up on Google. The UK data protection commissioner says it was unlawful for the National Health Service to share medical data with Google’s DeepMind subsidiary, even if the goal was to provide new medical insights. And the EU’s massive fine for Google’s abuse of its dominant position leads to musings on the regulatory foundations of some competition law doctrines –... Continue reading
Posted Jul 10, 2017 at Skating on Stilts
Today we deliver the second half of our bifurcated holiday podcast with an interview of Richard Ledgett, recently retired from his tour as NSA’s deputy director. We cover much recent history, from Putin’s election adventurism to questions about whether NSA can keep control of the cyberweapons it develops. Along the way, Rick talks about the difference between CIA and NSA approaches to hacking, the rise of NSA as an intelligence analysis force, the growing effort to keep Kaspersky products out of sensitive systems, and the divergence among intel agencies about whether Putin’s attack on the American election was intended mainly to hurt Hillary Clinton or to help Donald Trump. As always the Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Download the 173rd episode (mp3). Subscribe to the Cyberlaw Podcast here. We are also on iTunes, Pocket Casts, and Google Play (available for Android and Google Chrome)! Continue reading
Posted Jul 10, 2017 at Skating on Stilts
In this news-only episode, we cover the irresistible story of the week: Trump, Russia, and the Media. It’s especially irresistible for us because we’ve had two of the protagonists on as guests. I make the bold prediction that Shane Harris’s stories on Russia collusion and the Trump campaign will be seen as the moment when the media OCD fascination with Russia collusion finally jumped the shark. Though in this case, the shark had already consumed at least one Pulitzer-prize winning journalist, Eric Lichtblau. (And for the record, CNN, I am not advocating that more journalists should be eaten by sharks, and I refuse to accept the blame when they are.) Unfortunately, journalists chasing nonstories can’t devote any attention to some very real stories involving government and IT. So we do it for them. Stephen Heifetz reports on the CFIUS logjam that is blocking close to a dozen transactions because the administration has not filled the subcabinet positions that could sort through the filings with a coherent policy in mind. In other cyberwar logjam news, the UN Government Group of Experts (GGE) has failed to produce a consensus report following up on earlier reports endorsing some application of the law of... Continue reading
Posted Jul 3, 2017 at Skating on Stilts
Our guest, Ellen Nakashima, was coauthor of a Washington Post article that truly is a first draft of history, though not a chapter the Obama administration is likely to be proud of. She and Greg Miller and Adam Entous chronicle the story of Russia’s information operations attack on the 2016 presidential election. Want to know how it feels to have Donald Trump tweeting your article and taunting the last administration? Don’t worry, we ask. We also ask why the NSA was only moderately confident Putin was trying to help Trump win, and how the Obama administration managed to “choke” at every turn. Jim Comey makes a cameo appearance, ironically refusing to go public with his agency’s assessment of the hack because it might look like he was trying to influence the election -- well, whew! – that’s a bullet dodged! We dwell on the Obama administration’s bad luck in announcing its judgment on Putin’s hack half an hour before the Access Hollywood story broke and an hour before Podesta’s emails were released. Sometimes you win the news cycle; sometimes the news cycle wins you. Finally, Ellen talks about the plan to implant cyberweapons in Russian infrastructure and where it stands.... Continue reading
Posted Jun 26, 2017 at Skating on Stilts
This week’s episode is a news roundup without an interview. We lead with the Senate’s overwhelming adoption of unexpectedly tough Russia sanctions along with the Iran sanctions bill. The mainstream press has emphasized that the bill will lock the Obama sanctions into legislation, but Anthony Rapa explains that the bigger story is just how tough the bill will be on investors in Russia’s energy sector, including European and other third-country firms. This is going to put heavy pressure on the House and its Republican majority, where enthusiasm for punishing Russia has been more tepid. In other legislative news, the Freedom Caucus has announced that it doesn’t know what it wants from 702 renewal, but it wants something. At least that’s how I read the Caucus’s two sentence press release on section 702 renewal. In its entirety, the release says, “Government surveillance activities under the FISA Amendments Act have violated Americans’ constitutionally protected rights. We oppose any reauthorization of the FISA Amendments Act that does not include substantial reforms to the government’s collection and use of Americans’ data.” In a rare show of Cyberlaw podcast consensus, Michael Vatis agrees. Meanwhile, NSA and GCHQ are now linking WannaCry to North Korea. The... Continue reading
Posted Jun 19, 2017 at Skating on Stilts
In the news roundup, Benjamin Wittes makes a cameo appearance, defending Jim Comey (but not the FBI) from my suggestion that leaking has a long and unattractive history at the Bureau. Brian Egan takes us deep on federal records law. Next, Ben actually finds himself to my right as we try to negotiate a quick resolution to the growing impasse over section 702. I will never live it down. Nor will Ben. Maury Shenk explains what the UK election means for tech. Who knew? The Unionists actually have a tech platform. Maury and Brian muse on what the Qatar crisis tells us about cyberattacks – they may turn out to be much more effective as short-term one-offs than as sustained campaigns. China has found a way to use its new cybersecurity law — to investigate Apple, naturally. A better target would be the Chinese company Rafotech, which has installed something that looks a lot like spyware on 250 million machines worldwide. I’ll be at the Irish government’s Data Protection Summit later this week, and I’ll be asking why the EU is wasting its data export capital on fights with the US instead of China. Finally, we cover Ukraine’s unusual new... Continue reading
Posted Jun 12, 2017 at Skating on Stilts
Episode 168 features the Tinkers-to-Evers-to-Chance of global censorship, as Filipino contractors earning minimum wage delete posts in order to satisfy US tech companies who are in turn trying to satisfy European governments. Really, what could go wrong? In addition to Maury Shenk, our panel of interlocutors includes David Sanger, Chief Washington Correspondent for the New York Times, and Karen Eltis, Professor of Law at the University of Ottawa. Even if you think that reducing Islamic extremist proselytizing on line is a good idea, I argue, that’s not likely to be where the debate over online content ends up. Indeed, even today, controls on hate speech are aimed more at tweets that sound like President Trump than at extremist recruiting. Bottom line: no matter how you slice it, the first amendment is in deep trouble. In other news, I criticize the right half of the blogosphere for not reading the FISA court decision they claim shows that President Obama was spying illegally at the end of his term. Glenn Reynolds, I’m talking about you! The EU, in a bow to diplomatic reality, will not bother trying to improve the Safe Harbor deal it got from President Obama. Instead, it will try... Continue reading
Posted Jun 5, 2017 at Skating on Stilts
Episode 167 sees blockchain take over the podcast again. With Stewart traveling, Alan Cohn hosts another of the podcast’s periodic deep dives into all things blockchain and digital currency. Our guest is Meltem Demirors, Director of Development at Digital Currency Group. Podcast regular Maury Shenk joins members of Steptoe’s Blockchain and Digital Currency Practice, including financial regulation practitioner Matt Kulkin, tax guru Cameron Arterton, and author of several recent smart contracts blog posts Jared Butcher, in breaking down the current state of affairs in the blockchain world. Our episode begins by looking at the brewing controversy in the tax world. Cameron skillfully takes us through IRS Notice 2014-21, which provided initial guidance for how virtual currencies would be treated for tax purposes, as well as the charmingly-named TIGTA Virtual Currency Report, released in September 2016, which told the IRS that it hadn’t done much beyond issuing this guidance to flesh out what it actually meant to consumers and businesses. The IRS responded with the notorious Coinbase Summons, a John Doe summons that requested records of over 500,000 Coinbase subcribers. Needless to say, this led to Coinbase users challenging the summons in court and moving to quash, while Congressional leaders question... Continue reading
Posted Jun 2, 2017 at Skating on Stilts
In episode 166, we interview Kevin Mandia, the CEO and Board Director of FireEye, an intelligence-led security company. FireEye recently outed a new cyberespionage actor associated with the Vietnamese government. Kevin tells us how FireEye does attribution and just how good the Vietnamese are (short answer: surprisingly good but apparently small in scale). Along the way, we also cover questions such as whether China has its own set of forensic cybersecurity firms, how confident we should be about the attribution of WannaCry to North Korea, and whether PLA Unit 61398 should treat its designation as APT1 as a prestige designation, sort of like having “bob@microsoft” as your email address. Episode 166 is the interview that goes with episode 165’s news roundup, released separately to ensure the timeliness of the news. As always, the Cyberlaw Podcast welcomes feedback. Send an email to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Download the 166th episode (mp3). Subscribe to the Cyberlaw Podcast here. We are also on iTunes, Pocket Casts, and Google Play (available for Android and Google Chrome)! Continue reading
Posted May 26, 2017 at Skating on Stilts
Episode 165 is a WannaCry Festivus celebration, as The Airing of Grievances overtakes The Patching of Old Machines. Michael Vatis joins me in identifying all the entities who’ve been blamed for WannaCry, starting with Microsoft for not patching Windows XP until after the damage was done. (We exonerate Microsoft on that count.) Another candidate for WannaCry Goat of the Year is (of course) NSA for allegedly letting a powerful hacking tool fall into the hands of the Shadow Brokers, who released it in time for WannaCry’s authors to drop it into their worm. Private industry’s fingerpointing at NSA has led to introduction of the PATCH Act, which tries to institutionalize (and tilt) the vulnerability equities process. I raise a caution flag about trying to prevent harmful vulnerability leaks by spreading information about the vulnerabilities to a new batch of civilian agencies. I also ask whether a rational equities process should require that companies get the benefit of the process only if they agree to patch their products promptly and if they cooperate to the extent possible with law enforcement rather than forcing agencies to hack their products just to carry out lawful searches. Somehow I’m guessing that will cool Silicon... Continue reading
Posted May 22, 2017 at Skating on Stilts
Episode 164 features Stewart Baker’s startling change of heart on the question of cyberspace norms. Credit goes to our interview guest, Tim Maurer, Fellow and co-director of the Cyber Policy Initiative at the Carnegie Endowment for International Peace. And perhaps as well to Brian Egan, former Legal Adviser to the State Department and now a partner at Steptoe. Tim and Brian talk about Tim’s view and that of his colleagues, George Perkovich and Ariel Levite, at Carnegie that the world is ripe for an enforceable norm against hacking to corrupt financial data in the banking system. Remarkably, I agree with them, though not before casting aspersions on the United Nations and the State Department. In the news roundup, we’re joined by Paul Rosenzweig of Red Branch Consulting and the DHS Policy office. He critiques the cyber EO, which has finally been released – just in time for wCry ransomware. I note with satisfaction that the Russian government itself was burned by the worm, which it almost certainly released under the Shadow Brokers nom de guerre. Naturally, others prefer to blame the National Security Agency. Brad Smith of Microsoft is happy to blame NSA, and to claim that the crisis shows... Continue reading
Posted May 16, 2017 at Skating on Stilts
With our sound system back on line, episode 163 is already a big step up from Lost Episode 162. (Transcripts of 162 are available for those who wish by sending email to CyberlawPodcast@steptoe.com.) Our interview is with Susan Munro, of Steptoe’s Beijing office. Susan unwinds the complex spool of cyberlaw measures promulgated by the Chinese government. In the news, Maury Shenk and I note that Putin reran his US playbook in the French election, but the French were ready for him. Indeed, what we originally thought to be crude Russian forgeries may actually be Macron “honey docs” meant to look like crude Russian forgeries. If so, my hat is off to Macron’s IT team. Meanwhile, Jennifer Quinn-Barabanov spots a new trend in cybersecurity litigation. It’s nuts, but that’s not the new part. The intelligence community’s latest transparency report reveals a shocking stat about “backdoor” FBI searches of 702 for criminal cases. The bureau did that all of … one time. Those who want to clog our security services with ever more burdensome processes are going to have to find a bigger scandal. The Republicans complaining about Susan Rice and “unmasking” can find more to work with in the report. Turns... Continue reading
Posted May 8, 2017 at Skating on Stilts
In this episode, Alan Cohn and Maury Shenk look at questions in Europe and elsewhere in Stewart’s absence. Maury delves into why Google was ordered to turn over foreign data accessible from US, a decision that seems at odds with the Microsoft Ireland case. Alan considers claims made by David Sanger and William Broad in The New York Times that US blew up North Korea’s most recent missile test, and Jeffrey Lewis’s rebuttal in Foreign Policy. Alan and Maury both remain skeptical. Leaving the Korean peninsula, Maury discusses the current effort by EU data protection regulators to enact e-privacy regulations that would, among other things, put in place detailed standards for location tracking and content associated with metadata. No surprises, but potentially more headaches for US industry. And back on US soil, Alan comments on the US Justice Department’s apparent decisions to reconsider criminal charges against Wikileaks for the CIA cyber-tools leak. Maury provides some color on the Trump Administration’s (lack of) views on Privacy Shield. Finally, Alan reviews the bidding on dual-use export controls and cyber technologies, explaining both the most recent negotiations under the Wassenaar Arrangement and the EU’s efforts to amend its dual-use export controls to include... Continue reading
Posted Apr 26, 2017 at Skating on Stilts
This week the podcast features an extended news roundup with two guest commentators – Julian Sanchez of the Cato Institute and Gus Hurwitz of Nebraska Law School. We talk about the latest, mostly overhyped, Shadowbrokers dump, and whether Google Translate can be taught to render plain text into Shadowbrokerese as well as Klingon. Stephanie Roy kicks off speculation about the future of net neutrality in the Pai FCC. The future looks bright for litigators. Abbott Labs takes a short but brutal session in the woodshed from the FDA. Looks like Abbott’s now-subsidiary, St. Jude Medical, knew for years that its backdoor could be found by outsiders, but it stuck to the view that hardcoded access was a feature not a bug. Too bad Uber has already trademarked the name, because if ever there were a feature that deserved to be called “God mode,” this is it. Burger King triggers a technical battle with Google and an editing war with Wikipedia with a commercial that begins, “Okay, Google, what’s a Whopper burger?” But, law nerds that we are, all we can talk about is whether Burger King is liable under the Computer Fraud and Abuse Act. As always, the Cyberlaw Podcast... Continue reading
Posted Apr 17, 2017 at Skating on Stilts
Our guest interview is with Nick Weaver, of Berkeley’s International Computer Science Institute. It covers the latest dumps of hacker tools, the vulnerability equities process, the so-bad-you-want-to-cover-your-eyes story of Juniper and the Dual_EC hacks, and ends with a tour of recent computer security disasters, from the capture of a bank’s entire online presence, to the pwning of Dallas’s emergency sirens and a successful campaign to compromise the outsourcing firms that supply IT to small and medium sized businesses. In the news roundup, Maury Shenk, and Jamil Jaffer, of George Mason’s National Security Law & Policy Program, talk with me about the likely outcome of the European movement to regulate encryption. The bad news for Silicon Valley is that the US isn’t likely to play much of a moderating role when the Europeans tighten the screws. In other news, Jennifer Quinn-Barabanov explains the two-front battle that Wendy’s is facing (and mostly losing) over data breach liability. I acknowledge the latest Silicon Valley fad: filing lawsuits on behalf of their customers’ privacy. So far, Twitter has chalked up a win, and Facebook a loss. LabMD has also chalked up another win, this time in a Bivens action to hold FTC officials personally... Continue reading
Posted Apr 11, 2017 at Skating on Stilts
Episode 158 is a bonus episode – the Triple Entente Beer Summit, where members of the Steptoe Cyberlaw Podcast, the Lawfare Podcast, and the Rational Security Podcast assemble over beer to comment on the events of the week – or in this case, the day, since it was among the most news-filled days of President Trump’s young presidency. We cover the (then pending) attack on Assad’s forces in Syria, the future of the Russia election/surveillance investigation, and the meaning of changes to the National Security Council. It’s also the time each year when our audience gets to ask us questions, and that turns out to be among the most entertaining parts of the program. As always, the Cyberlaw Podcast welcomes feedback. Send an email to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785. Download the 158th Episode (mp3). Subscribe to the Cyberlaw Podcast here. We are also on iTunes, Pocket Casts, and Google Play (available for Android and Google Chrome)! Continue reading
Posted Apr 7, 2017 at Skating on Stilts
Episode 157 digs into the security of the medical internet of things. Which, we discover, could be described more often than we’d like as an internet of things that want to kill us. Joshua Corman of the Atlantic Council and Justine Bone, CEO of MedSec, talk about the culture clash that has made medical cybersecurity such a treacherous landscape for security researchers, manufacturers, regulators, and, unfortunately, a lot of patients who remain in the dark about the security of devices they carry around inside them. In the news roundup, Phil Khinda takes us through the likely trend in SEC cybersecurity enforcement in the new administration. Stephen Heifetz does the same for the Committee on Foreign Investment in the United States, or CFIUS. I claim that Eli Lake’s Bloomberg story finally explains why Republicans think that Obama administration surveillance and unmasking of Trump team members needs to be investigated. Stephen calls it a distraction. In other news, Buzzfeed gets taken down by a lawyer with a sense of humor, big claims are made for the impact of the third Wikileaks Vault7 document dump, and Donald Trump may have forgiven Apple. Finally, Jim Comey’s twitter account seems to have been outed; that’s... Continue reading
Posted Apr 4, 2017 at Skating on Stilts
Our interview is with Michael Daniel, former Special Assistant to the President and Cybersecurity Coordinator at the White House and current President of the Cyber Threat Alliance. We ask Michael how the new guys are doing in his job, what he most regrets not getting done, why we didn’t float thumb drives filled with “The Interview” into North Korea on balloons, and any number of other politically incorrect questions. His answers are considerably more nuanced. In the news roundup, we note that the second Wikileaks release is a damp squib, full of outmoded Apple exploits. Michael Vatis and I unpack the Third Circuit ruling upholding imposition of contempt penalties on a defendant who has “forgotten” the password to his child porn trove. It turns out that the case offers a road map for prosecutors and police who want to make sure no one ever forgets a password in their jurisdiction. Stephanie Roy notes that Congress has begun the process of repealing the ISP privacy and security regulations adopted under Chairman Wheeler. What, if anything, will replace them, and when, is a matter for lengthy speculation. I note that the privacy zealots of Silicon Valley have fatally miscalculated the kind of... Continue reading
Posted Mar 28, 2017 at Skating on Stilts
Having trouble understanding what President Trump and Rep. Nunes are banging on about? Try putting the shoe on the other foot… It’s 2020. Kamala Harris finishes a close second in New Hampshire, beating expectations that Elizabeth Warren would sweep her neighboring state (and its shared media market). Harris roars into South Carolina, where she suddenly leads in the polls with a message of repudiating what she calls the Trump administration’s dangerous foreign brinksmanship. Whatever you call it, you can’t call it dull. President Trump has forced Iran to renegotiate the nuclear deal by the simple expedient of expanding US sanctions to include the seizure and impoundment of any tanker carrying Iranian oil. The oil market remains stable, buoyed by record US oil and gas production. But the move prompts a diplomatic rupture and some tense maritime confrontations with India and China. Undeterred, the President says North Korea is next in line for what he calls, “Sanctions that work. Unlike the last guy’s. Not a leader!” But it will only take one foreign mishap to make Harris tough to beat. She’s fresh and virtually untouched by Warren’s surprised oppo research team. The Trump team vows that it won’t be caught similarly... Continue reading
Posted Mar 23, 2017 at Skating on Stilts
Episode 155 of the podcast offers something new: equal time for opposing views. Well, sort of, anyway. In place of our usual interview, we’re running a debate over hacking back that CSIS sponsored last week. I argue that US companies should be allowed to hack back; I’m opposed by Greg Nojeim, Senior Counsel at the Center for Democracy & Technology and Jamil Jaffer, Vice President for Strategy & Business Development of IronNet Cybersecurity. (Jeremy Rabkin, who was supposed to join me in arguing the affirmative, was trapped in Boston by a snowstorm.) In the news, we can’t avoid the unedifying – and cynical on both sides – spat between press and White House over wiretapping. We then turn to legal news, where I note the DC circuit’s adoption of a cursory and unpersuasive reading of the Foreign Sovereign Immunities Act in the context of state-sponsored hacking of activists in the United States. Maury Shenk next unpacks the latest ECJ opinion refusing to apply the “right to be forgotten” across the board to government databases. So far, the only clear application is to American tech giants. That’s also true of the latest German proposal to make the internet safe for censors,... Continue reading
Posted Mar 21, 2017 at Skating on Stilts
In this week’s episode, we ask two former NSA cybersecurity experts, Curtis Dukes and Tony Sager, both now from the Center for Internet Security, what advice they give family members about how to keep computers, phones, and doorbells safe from hackers. Joining us for the news round-up is Carrie Cordero, a Washington lawyer and adjunct professor of Law at Georgetown University who focuses on national security law, homeland security law, cybersecurity and data protection issues. Topping the news is the Wikileaks Vault7 release, including Assange’s mischievous offer to work with Silicon Valley to fix vulnerabilities before they’re disclosed. Carrie, Markham Erickson, and I comment. Stephanie Roy reports that the FCC is investigating a 911 outage at AT&T; so far the agency has been tight-lipped about the details. Home Depot is nearing the finish line in its data breach ordeal, Jennifer Quinn-Barabanov reports. The banks that had to reissue credit cards were among the last holdouts; they’re getting $25 million, which sounds like a lot until you do the math and realize it’s two bucks a card. Jennifer tells us that another defense effort to moot a TCPA class action by picking off a named plaintiff has been thwarted – this... Continue reading
Posted Mar 14, 2017 at Skating on Stilts
In this episode, Matt Tait, aka @PwnAllTheThings, takes us on a tour of Russia’s cyberoperations. Ever wonder why there are three big Russian intel agencies but only two that have nicknames in cybersecurity research? Matt has the answer to this and all your other Russian cyberespionage questions. In the news, we mourn the loss of Howard Schmidt, the first cyber czar and one of the most decent men in government. Then we descend into the depths of the Trump wiretap story. I reprise some of my views from Lawfare. Michael Vatis is not persuaded. After Microsoft’s refusal to provide data stored in the cloud outside the US was upheld in the Second Circuit, things looked rosy for its position. But now two magistrates in a row have rejected it. Michael and I discuss the latest ruling. Maury Shenk is now our official commentator on the legal consequences of Internet-enabled toys. This time it’s teddy bears, whose interactions with children and parents were exposed by hackers. More seriously, Maury praises an impressive new analysis of China’s 50c army of tweeters. It turns out that everything we thought we knew about the 50c army is wrong. Just in time for an early... Continue reading
Posted Mar 6, 2017 at Skating on Stilts
Our guest for episode 152 is Paul Rosenzweig. In the news roundup, Stephanie Roy outlines the deregulatory tangle around ISPs, privacy, security, and the FCC. Maury Shenk briefs us on the European legislation authorizing the quashing of terrorist advocacy on line. Jennifer Quinn-Barabanov explains when standing is a defense against privacy claims and when it isn’t. Together, we remark on the latest example of formerly stodgy banks embracing their inner plaintiffness. Maury explains why the Germans have banned Cayla the talking (and listening!) doll. I ask whether the Germans next plan to ban speakerphones. (Likely answer: only if they come from America.) Paul and I dig into the Amazon claim that the first amendment prevents enforcement of a criminal discovery order seeking Amazon Echo recordings. Hey, the suspect might have been ordering books, and that’s a first amendment activity, says Amazon, and anyway, what Alexa said back to the suspect was an exercise of Amazon’s first amendment rights. These arguments cry out for the command most frequently heard by my music-playing Echo: “Alexa, that’s enough.” Almost as unpersuasive to Paul and me is magistrate judge David Weisman’s refusal to issue an order allowing the police to search a home and... Continue reading
Posted Feb 28, 2017 at Skating on Stilts