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Stewart Baker
Former government official now practicing law
Recent Activity
Our guest for the Cyberlaw podcast interview is Noah Phillips, recently appointed FTC Commissioner and former colleague of Stewart Baker at Steptoe. Noah fields questions about the European Union, privacy, and LabMD, about whether Silicon Valley suppression of conservative speech should be a competition law issue, about how foreign governments’ abuse of merger approvals can be disciplined, and much more. The imminent adoption of the must-pass National Defense Authorization Act yields a deep dive on the bill. Most important for business lawyers, the bill will include a transformative rewrite of CFIUS’s investment-review procedures and policies. Gus Hurwitz lays out many of the cyber issues addressed by the NDAA, while Dr. Megan Reiss explains the act’s creation of a “Solarium” commission designed to force serious strategic thinking about cybersecurity and cyberweapons. I offer my contribution to that debate – an effort to think the unthinkable and come up with tougher options for responding to serious cyberattacks. Since we’re trying to think the unthinkable, I argue, we’re really rooting for the itheberg, so I’ve dubbed it the Itheberg Project. I do, however, make an unusual double-barreled offer to those who might want to participate in the Itheberg Project. All that pales next... Continue reading
Posted Jul 30, 2018 at Skating on Stilts
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In this episode, Bobby Chesney charts the emergence of undetectably forged videos. They’re not here yet, but before we’re ready the internet will be awash with fake revenge porn, fake human rights atrocities, and fake political scandals. My talk with Bobby revolves around a recent paper by him and Danielle Citron. I confess to having seriously considered federal support for a fake video involving Osama bin Laden and kumquats (not what Patt Cannaday and Stewart Baker you’re thinking, though that would have been good too). Bobby and I discuss the ways in which the body politic – and particular political bodies – might protect themselves. This leads Bobby to propose a Cyberlaw Podcast mug prize for listeners who suggest what – and where – I should get inked as my last line of defense. He’s on. Send your suggestions to cyberlawpodcast@steptoe.com. In the news, Maury Shenk and I puzzle over the EU’s questionable competition ruling (and $5 bn fine) for Google’s alleged abuse of a dominant position in mobile operating systems. Once again I find myself agreeing more with Donald Trump than his critics. Patt Cannaday, a Steptoe summer associate, finds what’s new in the Justice Department’s Cyber Digital Task... Continue reading
Posted Jul 23, 2018 at Skating on Stilts
In Episode 226 of The Cyberlaw Podcast, I'm deep in the Cologado wilderness, and the News Roundup team (Brian Egan with Matthew Heiman, Jim Lewis, and Dr. Megan Reiss) muddles through without him. Matthew and Jim discuss Friday’s indictment of 12 Russian GRU personnel by the Department of Justice and Special Counsel Mueller. Matthew explains that, while we shouldn’t expect extradition proceedings to take place any time soon (or ever), DOJ has a theory for pursuing these types of indictments in selected cases. I weigh in by Twitter, bemoaning somewhat surprisingly (given the source) that the indictments reflect a poor interagency coordination process and a lack of appreciation for diplomacy. From Jim’s perspective, these indictments are about as good as diplomacy is going to get on this issue… Matthew walks through the continued bipartisan work in the Senate on the Secure Elections Act, which would facilitate information sharing amongst the states on election threats and take other steps in an attempt to improve election cybersecurity. Matthew explains that federalism may well end up limiting what can be done (or what Congress will agree to do) on this issue. Megan weighs in on Commerce’s announcement on Friday that it lifted the... Continue reading
Posted Jul 17, 2018 at Skating on Stilts
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Our interview is with Gen. Michael Hayden, author of The Assault on Intelligence: American National Security in an Age of Lies. Gen. Hayden is a former head of the CIA and NSA, and a harsh critic of the Trump Administration. We don’t agree on some of his criticisms, but we have a productive talk about how intelligence should function in a time of polarization and foreign intervention in our national debates. General Michael Hayden and Stewart Baker In the news, David Kris reports that ZTE has gotten a limited life-support order from the Commerce Department. Meanwhile, Nate Jones tells us that China Mobile’s application to provide telecom service to Americans is also likely to bite the dust – after nearly seven years of dithering. Taking advantage of my preview of stories on Facebook, Tony Rutkowski suggests we call this the revenge of the “neocoms.” So we do. Remarkably, the European Parliament fails to live down to my expectations, showing second thoughts about self-destructive copyright maximalism. Nick Weaver thinks this outbreak of common sense may only be temporary. Paul Rosenzweig confesses to unaccustomed envy of EU security hardheadedness. Turns out that Europe has been rifling through immigrants’ digital data in a... Continue reading
Posted Jul 9, 2018 at Skating on Stilts
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In this episode I interview Duncan Hollis, another Steptoe alumnus patrolling the intersection of international law and cybersecurity. With Matt Waxman, Duncan has written an essay on why the US should make the Proliferation Security Initiative (PSI) a model for international rulemaking for cybersecurity. Since “coalition of the willing” was already taken, we settle on “potluck cyber policy” as shorthand for the proposal. To no one’s surprise, Duncan and I disagree about the value of international law in the field, but we agree on the value of informal, agile, and “potluck” actions on the world stage -- pretty much what PSI represents. In further support, I offer Baker’s Law of International Institutions: “The secretariat is the natural enemy of the United States.” In closing, Duncan briefly mentions his work with Microsoft on international rulemaking, leading me to throw down on “Brad Smith’s godforsaken proposal.” Brad, if you are willing to come on the podcast to defend that proposal, I’ve promised Duncan a highly coveted Cyberlaw Podcast mug. In the news, California has a new privacy law, as Steptoe summer associate Laura Hillsman explains, though what it will look like when it finally takes effect in 2020 remains to be seen.... Continue reading
Posted Jul 2, 2018 at Skating on Stilts
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I interview David Sanger in this episode on his new book, The Perfect Weapon – War, Sabotage, and Fear in the Cyber Age. It is a true first draft of history, chronicling how the last five years transformed the cyberwar landscape as dozens of countries followed a path first broken by Stuxnet -- and then, to our horror, branched out to new and highly successful ways of waging cyberwar. Mostly against us. David depicts an Obama administration paralyzed by the Rule of Lawyers and a fear that our opponents would always have one more rung than we did on the escalation ladder. The Trump administration also takes its lumps, sometimes fairly and sometimes not. At center stage in the book is Putin’s uniquely brazen and impactful use of information warfare, but the North Koreans and the Chinese also play major roles. It is as close to frontline war reporting as cyber journalism is likely to get. Cyberlaw news this week is dominated by a couple of Supreme Court decisions: In Carpenter the Court held 5-4 that warrants are required to collect a week of location data from cell phone companies. Michael Vatis lays out the ruling, and I complain that... Continue reading
Posted Jun 26, 2018 at Skating on Stilts
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Our interview is with Megan Stifel, whose paper for Public Knowledge offers a new way of thinking about cybersecurity measures, drawing by analogy on the relative success of sustainability initiatives in spurring environmental consciousness. She holds up pretty well under my skeptical questioning. In this week’s news, Congress and the Executive branch continue to fight over the bleeding body of ZTE, which has already lost nearly 40% of its market value. The Commerce Department has extracted a demanding compliance and penalty package from the Chinese telecom equipment manufacturer. The Senate, meanwhile, has amended the NDAA to overturn the package and re-impose what amounts to a death penalty (see section 1727). Brian Egan and I dig into the Senate’s language and conclude that it may do a lot less than the Senators think it does, and that may be the best news ZTE is going to get from Washington this year. Judge Leon has approved the AT&T-Time Warner merger. Gus Hurwitz puts the ruling in context. His lesson: next time, the Justice Department needs better evidence. Brian gives us an update on what’s not in the CFIUS reform bill now that the CFIUS reform bill is in the NDAA and on... Continue reading
Posted Jun 18, 2018 at Skating on Stilts
The 11th Circuit’s LabMD decision is a dish served cold for Michael Daugherty, the CEO of the defunct company. The decision overturns decades of FTC jurisdiction, acquired over the years by a kind of bureaucratic adverse possession. Thanks to the LabMD opinion, practically all the FTC’s privacy and security consent decrees are at risk of being at least partly unenforceable — and if the dictum holds, the FTC may have to show that everything it views as an “unfair” lack of security is actually a negligent security practice. Commerce says it has a deal with ZTE. Nate Jones wonders whether the bipartisan opposition to the deal from Congress is too late. David Kris introduces a remarkable week for Justice Department responses to leaks of classified information. A long-time security director at the Senate Intelligence Committee succumbs first to the wiles of an aspiring reporter, and then to the temptation to lie about the romance to the FBI. James Wolfe will pay a heavy price for his leaks of classified information — without ever being tried for leaking classified information. I can’t help asking how the FBI gathered as much information as they did from supposedly secure services like Signal and... Continue reading
Posted Jun 11, 2018 at Skating on Stilts
GDPR has finally arrived, Maury Shenk reminds us, bringing both expected and unexpected consequences. Among the expected: New Schrems lawsuits for more money from the same old defendants; and the wasting away of the cybersecurity resource that is WHOIS, as German courts ride to the rescue of insecurity — in the name of privacy. Also probably to be expected, at least for those who have paid attention to the history of technology regulation: The biggest companies are likely to end up boosting their market dominance. Less expected: The decision of some big US media to just say no to European readers, recognizing them as the Typhoid Marys of the Internet, carrying a painful and stupid regulatory infection to every site they visit. In other unsurprising news, Gus Hurwitz and Megan Reiss note, Kaspersky has now lost both its lawsuits against US government bans in a single district court ruling. In genuinely troubling news, Iran is signaling a willingness to attack US industrial controls, which run the electric grid and pipelines and sewage systems, using the same malware it used against the Saudis. Since Iran was willing to launch DDoS attacks on US banks the last time negotiations over its nuclear... Continue reading
Posted Jun 4, 2018 at Skating on Stilts
This episode features a conversation with Nick Bilton, author of American Kingpin: The Epic Hunt for the Criminal Mastermind Behind the Silk Road. His book, out today in paperback, tells the story of Ross Ulbricht, the libertarian who created the hidden Tor site known as the Silk Road, and rode it to massive wealth, great temptation, and, finally, a life sentence. It’s a fine read in its own right, but for those who know the federal government, the most entertaining parts concern the investigators who bring Ulbricht down. They all have ambitions and flaws that mirror the stereotypes of their agencies, even -- or perhaps especially -- when the agents go bad. It’s got everything – sales of body parts, murder (maybe!), rogue cops, turf fights, and justice in the end. Sadly, I predict this episode will generate more hate mail than any other. Why? You’ll have to listen to find out. Feel free to question my judgment with emails to CyberlawPodcast@steptoe.com.lp Download the 219th Episode (mp3). You can subscribe to The Cyberlaw Podcast using iTunes, Pocket Casts, Google Play, or our RSS feed! As always, The Cyberlaw Podcast is open to feedback. Send your questions and suggestions for topics... Continue reading
Posted May 29, 2018 at Skating on Stilts
In this episode, Markham Erickson highlights the Mugshots.com prosecution. The site had a loathsome business model, publishing mugshots for free and charging hundreds of bucks to people who wanted the record of their arrests taken down. Now the owners are being prosecuted in a case that combines the worst of European crazy (“surely criminals have a right to be forgotten”) and California crazy (“profits are being earned here – surely that calls for a criminal investigation”). Markham explains why this may be a hard case for California to win – and then joins me in expressing schadenfreude for the owners, whose mugshots are even now spread all across the internet. Meanwhile, the ZTE mess gets messier as Congress moves to block President Trump’s proposed sanctions relief. Democrats are joining national security Republicans to move legislation on the topic. Who says President Trump is the divider-in-chief? Michael Vatis digs into the FBI’s latest high-profile problem: it grossly overstated the number of encrypted phones it encountered last year. Was it a mistake or a misrepresentation? Our panel leans toward mistake. Michael and I also criticize President Trump’s decision to dump government security for his phone. Michael reminds us of the President’s scathing... Continue reading
Posted May 25, 2018 at Skating on Stilts
In our 217th episode of The Cyberlaw Podcast, the blockchain and cryptocurrency team seizes control of the podcast again. Alan Cohn hosts another of the podcast’s periodic deep dives into all things blockchain and cryptocurrency to discuss recent regulatory developments and the current state of play of the industry. Our episode begins by looking at the Department of Treasury’s letter regarding initial coin offerings (“ICOs”). Jack Hayes tells us the key takeaways from the letter, including that persons engaged in ICOs could be considered a Money Transmitter under FinCEN’s regulations. Not only does the letter address companies based in the US that are issuing tokens, but also those based outside of the US that may have a substantial part of their business in the US or be issuing tokens to US persons. The idea that FinCEN can reach outside of the US border is not a new one. Last summer we saw a civil enforcement action against BTC-e, a foreign cryptocurrency exchange. Jack and Alan also discuss the New York Attorney General’s recent voluntary transparency questionnaire sent to both US and non-US cryptocurrency exchanges. New York has seen its fair share of controversy with respect to cryptocurrency with the implementation... Continue reading
Posted May 23, 2018 at Skating on Stilts
The Cyberlaw Podcast has now succumbed to an irresistible media trend: We begin the episode with a tweet from President Trump. In this one, he promises to get ZTE “back in business, fast.” Paul Rosenzweig and Nick Weaver provide the backstory, and a large helping of dismay, at the President’s approach to the issue. I question the assumption that this will make the life of Chinese telecom equipment makers easier in the US. If anything it could be worse. The 2019 NDAA being drafted in the House will make it very difficult for telecom companies that do business with the Pentagon to rely on Chinese (or Russian) equipment. If anything, the President probably ensured a unanimous Democratic vote for the measure. The cyber coordinator position in the White House is on the endangered list. Paul explains why it should survive. His take is not completely snark-free. Summing up the first two stories, I suggest that it proves the maxim (which, come to think of it, might be my maxim) that every President gets the White House he deserves. Nick explains how badly American democracy could be harmed by a relatively trivial Russian (or Iranian, or North Korean) cyberattack on voter... Continue reading
Posted May 14, 2018 at Skating on Stilts
Our interview is with Nick Schmidle, staff writer for the New Yorker. His report on cybersecurity work that goes to the edge of the law and beyond turns up some previously unreported material, including the tale of Shawn Carpenter, a cybersecurity researcher with a talent for showing up in all the best hackback stories. In the news, Jamil Jaffer reports on domain fronting, a weird form of protection for people hiding the site they’re connecting to behind some bland Google or AWS site. Some of those people are dissidents in authoritarian lands; many are authoritarian governments hacking secrets out of corporate networks. In any event, domain fronting is disappearing before it had even made an impression on the public’s mind. I say good riddance, bolstered in my opinion by the wailing of professional privacy groups that, do I have to remind you?, don’t care about your security at all. The Supreme Court takes a case of great interest to social media and other tech firms who attract class actions. Jennifer Quinn-Barabanov explains the law and the likely outcome. I mostly quibble about how to pronounce “cy pres.” Move fast and break things probably isn’t the best motto if the thing... Continue reading
Posted May 7, 2018 at Skating on Stilts
This episode of the Cyberlaw Podcast features a new technology-and-privacy flap: The police finally catch a sadistic serial killer, and the press can’t stop whining about DNA privacy. I argue that DNA privacy is in the running for Dumbest Privacy Issue of the Decade, in which it turns out that privacy is all about making sure the police can’t use your data to catch killers. Paul Rosenzweig refuses to take the other side of that debate. Ray Ozzie has released a technical riposte to the condescending Silicon Valley claim that math proves the impossibility of securely accommodating law enforcement access. Paul and I muse on the aftermath, in which Silicon Valley may actually have to try winning the debate rather than claiming that there is none. Jim Lewis and I note the likelihood that ZTE is contemplating litigation against the US ban on technology sales to the company. What really bothers Jim, though, is the likelihood that the US sanction will accelerate China’s move to complete self-sufficiency in the technology sphere. That’s something that neither the US government nor US industry is really ready for. The House intel committee’s report on Russia and the election is out. It finds no... Continue reading
Posted May 1, 2018 at Skating on Stilts
In a news-only episode, we get a cook’s tour of the RSA conference from attendees Paul Rosenzweig, Jim Lewis, and Stewart Baker. Instead of spending a week at RSA, you can listen to us talk for five minutes about the top trends we saw at RSA: more nations attacking cybersecurity firms over attribution, more companies defending themselves outside their own networks (aka hackback), and growing (if still modest) respect for DHS’s role in cybersecurity. Oh, and Microsoft’s Digital Geneva Convention is still a mashup of profound naïveté and deep cynicism, but Microsoft’s Cyber Tech Accord may do better – at least until the FTC gets hold of it. In other news, ZTE is being hammered for showing contempt for US export control enforcement. But the back-splatter on US suppliers will be severe as well. The United States is picking a big, big fight with China on the future of technology, and it’s going to need a strategy. Speaking of fights, Telegram is in a doozy with Russia over its refusal to supply crypto keys to the government. It looks as though Telegram’s use of Google and other domains as proxies (“domain fronting”) is making it hard for Russia to work... Continue reading
Posted Apr 23, 2018 at Skating on Stilts
Our interview is with Chris Bing and Patrick Howell O’Neill of Cyberscoop. They’ve broken two cyberscoops in the last week or so. First, an in-depth look at Kaspersky’s outing of a US cyberespionage program aimed at foreign terrorists. Hint to Kaspersky: Bringing out a brass band to warn terrorists that are being tracked by the US government is not likely to help you win your PR and legal battles in the United States. Chris Bing also covers his other scoop – the surprisingly advanced talks among the leaders of the Senate Judiciary Committee on a bill to address the FBI’s “going dark” problem. In the news, Jennifer Quinn-Barabanov and I debate the impact of two recent incidents on the future of self-driving cars. She thinks they’ll weather these events, and that the lives such cars save will outweigh the deaths. I’m less sure, mainly because the mistakes that lead to autonomous vehicle deaths are so different from the usual human-driver error and therefore inherently compelling and disquieting. Nick Weaver and I cover the Grindr security flap and the company's transmission of HIV status without complete encryption protection. I think there’s less to the story than meets the eye, and that... Continue reading
Posted Apr 9, 2018 at Skating on Stilts
In the news roundup, Nick Weaver, Ben Wittes, and I talk about the mild reheating of the encryption debate, sparked not just by renewed FBI pleading but by the collapse of the left-lib claim that building law enforcement access into IT devices is impossible because, uh, math. The National Academy report on encryption access has demonstrated that access is well within the zone of plausible technology policy, with support from a group of prominent tech experts, such as Ray Ozzie, all of whom know math. Speaking of law enforcement, it was a good week for cybercrime enforcement. Nick and I touch on two victories for the good guys, with the Carbanak mastermind busted in Spain and Yevgeny Nikulin extradited to the US over Russian objections. Meanwhile, DHS is moving forward on one of the more significant new efforts to control terrorist travel across borders -- using social media data. The agency will be requiring social media names (but not passwords) from visa applicants, according to a proposed rule now gathering comments. Maury Shenk, Ben, Nick, and I talk about the privacy and first amendment issues implicated by the proposal. We don’t agree on most of those issues. But we find... Continue reading
Posted Apr 2, 2018 at Skating on Stilts
It was a cyberlaw-packed week in Washington. Congress jammed the CLOUD Act into the omnibus appropriations bill, and boom, just like that, it was law, and you could wave good-bye to the Microsoft Ireland case just argued in the Supreme Court. Maury Shenk offers a view of the Act from the United Kingdom, the most likely and maybe the only beneficiary of the Act. Biggest losers? For sure the ACLU and EFF and their ilk, who were more or less rendered irrelevant without the funding and implicit backing of Silicon Valley business interests. But wait, there’s more Congressional action, and this time it’s bad news even for Silicon Valley business interests. For the first time, the immunity conferred on social media platforms by Section 230 of the Communications Decency Act has been breached. Jamil Jaffer and I discuss FOSTA/SESTA, adopted this week. In theory the act only criminalizes media platforms that intentionally promote or facilitate prostitution, but any platforms that actually read their own content are likely at risk. Which is what Craigslist concluded, killing its personals section in response to the act. Worse for Silicon Valley, this may just be the beginning, as its unpopularity with left and right... Continue reading
Posted Mar 26, 2018 at Skating on Stilts
All of Washington is mad at Silicon Valley these days, as our news roundup reveals. Dems and the media have moved on from blaming Hillary Clinton’s loss on Vladimir Putin; now they’re blaming Facebook and Cambridge Analytica. Gus Hurwitz and I have doubts about the claims of illegality, but I reprise my frequent critique of privacy laws: they are uniquely likely to be enforced against those who annoy governing elites (because they’re so vague and disconnected from objectionable conduct that they can be enforced against almost anyone). Alan Cohn describes the many regulatory agencies now feeling emboldened to take a whack at cryptocurrencies. He’s hopeful that only bad actors will actually feel the blow. I lay out the remarkably aggressive, and novel, enforcement philosophy behind CFIUS’s rejection of the Broadcom-Qualcomm deal – and the steadily advancing Congressional effort to regulate Silicon Valley’s Chinese connections more closely. That effort has featured some remarkably harsh political attacks on tech giants like IBM and GE. Is all this hate for techies good or bad for the effort to reimpose net neutrality through the courts? The states? Stephanie Roy maps the terrain, which turns out to be every bit as muddled as you thought... Continue reading
Posted Mar 19, 2018 at Skating on Stilts
Our interview this week is with Ambassador Nathan Sales, the State Department’s Counterterrorism Coordinator. We cover a Trump administration diplomatic achievement in the field of technology and terrorism that has been surprisingly undercovered (or maybe it’s not surprising at all, depending on how cynical you are about press coverage of the Trump administration). We also explore new terrorism technology challenges and opportunities in social media, State’s role in designating terrorists, the difference a decade can make in tech and terror policy, and how the Ambassador lost his cowboy boots. In the news roundup, China seems to be hiding behind half our stories this week. Brian Egan and I sift through the entrails of CFIUS’s pronouncements on the Qualcomm/Broadcom takeover fight charts, where Chinese competition in 5G is an ever-present subtext. More broadly, we point to a flood of stories suggesting that the US government is just beginning to struggle with the challenge posed by an economically strong adversary nation. These include accusations of “weaponized capital,” naïve and compromised US academic institutions, and what amounts to a Chinese intelligence-industrial-unicorn complex. The SEC says digital coin exchanges may be unlawful; bitcoin takes a market hit. But Matthew Heiman, in his first appearance... Continue reading
Posted Mar 13, 2018 at Skating on Stilts
Our interview features an excellent and mostly grounded exploration of how artificial intelligence could become a threat as a result of the cybersecurity arms race. Maury Shenk does much of the interviewing in London. He talks to Miles Brundage, AI Policy Research Fellow at the Future of Humanity Institute at Oxford and Shahar Avin of the Centre for the Study of Existential Risk and Research Associate at Cambridge. They are principal authors of a paper The Malicious Use of Artificial Intelligence: Forecasting, Prevention and Mitigation. The discussion was mostly grounded, as I said, but I do manage to work in a reference to the all-too-plausible threat of a hacking, bargaining AI sent by aliens from other star systems. In the news roundup, semi-regular contributor Gus Hurwitz does a post-mortem on the oral argument in Microsoft’s Ireland case. Maury notes that Google has issued its most detailed report yet on how it’s implementing the right to be forgotten. My takeaway: apart from censoring media in their own countries, everyone’s favorite censorship targets seem to be US sites. I am not comforted that 90 percent of the censorship stays home, since the other ten percent seems aimed at keeping true facts from,... Continue reading
Posted Mar 5, 2018 at Skating on Stilts
Today’s news roundup begins with Maury Shenk and Brian Egan offering their views about the Supreme Court oral argument in the Microsoft Ireland case. We highlight some of the questions that may tip the Justices’ hand. Brian and I dig into the Dems' reply memo on the Carter Page FISA application. I’m mostly unshocked by the outcome of the dueling memos, though I find one sentence of the application utterly implausible. I also foresee a possible merging of the Clinton-Obama Trump-smearing scandal with the Trump-Russia collusion scandal – call it the scandularity! In other Russia news, the Justice Department is standing up a task force on all things cyber. Jim Lewis and I disagree about whether Russian hacking of the electoral infrastructure is likely to be a serious problem in 2018. We agree that the Twitter bot war on the American body politic will continue, since it seems to be a pretty cheap hobby for Putin’s favorite supplier of catered meals. Indeed, he seems to have gotten into the business as a way of squelching online protests that his school lunches were lousy. I suggest that Michelle Obama probably wishes she’d heard about that tactic sooner. Google has announced an... Continue reading
Posted Feb 26, 2018 at Skating on Stilts
Looking for a Baker-free episode of The Cyberlaw Podcast? This is your week; I miss the podcast to teach grandchildren how to ski cross country. Brian Egan and Jamil Jaffer hold the fort, covering a few implications of Special Counsel Mueller’s indictment from Friday – the legal theories of the case and what the indictment does and doesn’t cover – as well as the follow-on false statement indictment against a former associate of a major law firm. In an amazing convergence of viewpoints, everyone, from Presidents Obama and Trump to Brian and Jamil – agrees that Russia appears to be winning, and the US is losing, when it comes to interference with US elections. At the same time, the state secretaries of state gathered in Washington last week to discuss cybersecurity and US elections – coming in the face of a fairly damning report published by the Council on American Progress on shortcomings in US election-related cyber defenses. In light of these threats, we ponder whether a return to the old – paper ballots, or even the “mail only” approach that is operative in a few states, is better than an electronic ballot. In other Russia-related news, Kaspersky turned to... Continue reading
Posted Feb 24, 2018 at Skating on Stilts
In this episode, Jamil Jaffer and I interview Glenn Gerstell, the General Counsel of the National Security Agency. Glenn explains what it was like inside the effort to reauthorize section 702 of FISA. Jamil and I ask him whether the FISA court has the authority to deal with material omissions in FISA applications, and he actually answers. Glenn also touches on how it feels to discover that data subject to a judicial retention order has been inadvertently deleted, on his secret exercise regime, on his future plans, and on how the United States should respond to the cybersecurity crisis. Download the 203rd 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 Feb 14, 2018 at Skating on Stilts