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Stewart Baker
Former government official now practicing law
Recent Activity
Our guests this week are Paul Scharre from the Center for a New American Security and Greg Allen from the Defense Department’s newly formed Joint Artificial Intelligence Center. Paul and Greg have a lot to say about AI policy, especially with an eye toward national security and strategic competition with China. Greg sheds some light on DOD’s activity, and Paul helps us understand how the military and policymakers are grappling with this emerging technology. But at the end of the day, I want to know: Are we at risk of losing the AI race with China? Paul and Greg tell me not all hope’s lost – and how we can retain technological leadership. In what initially seemed like a dog-bites-man story, Attorney General Barr revived the “warrant-proof” encryption debate. He brings some thoughtful arguments to the table, including references to practical proposals by GCHQ, Ray Ozzie, and Matt Tait. Nick Weaver is skeptical toward GCHQ’s proposal. But I think the future of the debate will be driven by Facebook’s apparent plan to drastically undermine end-to-end encryption by introducing content moderation to its encrypted messaging services. I argue that Silicon Valley is so intent on censoring its users that it is... Continue reading
Posted Jul 30, 2019 at Skating on Stilts
Today, I interview Frank Blake, who as CEO brought Home Depot through a massive data breach. Frank’s a former co-clerk of mine, a former Deputy Secretary of Energy, and the current host of Crazy Good Turns, a podcast about people who have found remarkable, even crazy, ways to help others. In addition to his insights on what it takes to lead an organization, Frank offers his views on how technology can transform nonprofit charitable initiatives. Along the way, he displays his characteristic sense of humor, especially about himself. In the News Roundup, I ask Matthew Heiman if Google could have had a worse week in Washington. First Peter Thiel raised the question of whether it’s treasonous for the company to work on AI with Chinese scientists but not the US Defense Department, then Richard Clarke, hardly a conservative, says he agrees with the criticism. And, inevitably, President Trump weighs in with a Thiel-supporting tweet. Meanwhile, on the Hill, Google’s VP says the company has “terminated” Project Dragonfly, an effort to build a search engine that the Chinese government would approve. But that doesn’t prevent conservatives from lambasting the company for bias against conservatives and an unfair subsidy in the form... Continue reading
Posted Jul 22, 2019 at Skating on Stilts
What is the federal government doing to "illuminate" its supply chain and then excise compromised hardware and software? That’s what we ask Harvey Rishikof, coauthor of “Deliver Uncompromised,” and Joyce Corell, who heads the Supply Chain and Cyber Directorate at the National Counterintelligence and Security Center. There’s no doubt the problem is being admired to a fare-thee-well, and some evidence it’s also being addressed. Listen and decide! In the News Roundup, Nate Jones and I disagree about the Second Circuit ruling that President Trump can’t block his critics on Twitter. We don’t disagree about that ruling, but I’m a lot more skeptical than Nate that it will be applied to that other famous Washington tweeter, Alexandria Ocasio-Cortez. GDPR still sucks, but now it bites, too. Matthew Heiman explains just how bad the bite was for Marriott and British Airways. Gus Hurwitz reprises how much – or little – we know about the FTC and Facebook. We won’t know much, he says, until we answer the question, “Where’s the complaint?” Talk about hard supply chain issues. Congress banned Chinese surveillance cameras from the federal supply chain by law. But passing a law turns out to be a lot different from actually,... Continue reading
Posted Jul 16, 2019 at Skating on Stilts
This week I interview Glenn Reynolds, of Instapundit and the UT Knoxville law school, about his new book, The Social Media Upheaval. In a crisp 64 pages, Glenn analogizes social media to a primeval city, where new proximity produces periodic outbreaks of diseases that more isolated people never experienced; traces social media’s toxicity to the desperate pursuit of engagement; and proposes remedies both for individual users and for society as a whole. All that plus thoughtful advice on dietary supplements and deadlifts! In the news roundup, Matthew Heiman dissects a recent Third Circuit ruling that Amazon can be held strictly liable for products it markets for third parties. Unlike Matthew, I am largely persuaded by the court’s ruling on products liability – but Matthew and I both have doubts about its use of section 230 of the Communications Decency Act to protect Amazon from “failure to warn” liability. Maury Shenk and Nick Weaver review the progress of the War on Facial Recognition. Opponents have rolled out the ultimate weapon of the modern left: OMG, ICE is using it! But facial recognition is still winning the war, mostly because its opponents are peddling undifferentiated fear of a technology that’s already being... Continue reading
Posted Jul 9, 2019 at Skating on Stilts
The theme this week is China’s growing confidence in using cyberweapons in new and sophisticated ways, and the US struggle to find an answer to China’s growing ambition in this sphere. Our interview guest, Chris Bing of Reuters, talks about his story on Chinese penetration of managed service providers like HP Enterprise – a penetration that allowed APT10 access to hundreds of other companies that rely on managed service providers for most of their IT. Most chilling for the customers are strong suggestions that the providers often didn’t provide notice of the intrusions to their customers – or, worse, that the providers’ contracts may have prevented their customers from launching quick and thorough investigations when their own security systems detected anomalous behavior originating with the providers. After this episode, a lot of CISOs will be rereading their managed service contracts. Chris also tells the story of an apparent “Five Eyes” intrusion into Yandex, the big Russian search engine. Returning to China, in our News Roundup Nate Jones covers the latest in the US-China trade war before diving into a Wall Street Journal article (by Kate O’Keeffe) that I call the Rosetta Stone for the last two years of cyber policymaking.... Continue reading
Posted Jul 1, 2019 at Skating on Stilts
Our interview guests this week are Dick Clarke and Rob Knake, who have just finished their second joint book on cybersecurity, The Fifth Domain. We talk about what has changed and what they got right and wrong in their original book. Clarke and Knake offer surprising flashes of optimism from about the state of cybersecurity today, and the book itself is an up-to-date survey of the policy environment. Best of all, they have the courage to propose actual policy solutions to problems that others just admire. I disagree with about half of their proposals, so much light and some heat are shed in the interview, which I end by bringing back the McLaughlin Group tradition of rapid-fire questions and an opinionated "You're wrong" whenever the moderator disagrees. C'mon, you know the arguments are really why you listen, so enjoy this one! In the News Roundup, Gus Hurwitz covers the Supreme Court's ruling on when a forum is subject to First Amendment limits. Short takeaway: There is not a single Justice who thinks Silicon Valley's platforms are public fora subject to the First Amendment. Sen. Hawley (R-MO) comes in for some mockery as a result, which prompts me to invite him... Continue reading
Posted Jun 24, 2019 at Skating on Stilts
We interview David Sanger, whose recent New York Times article on US intrusions into the Russian grid was condemned as “a virtual act of treason” in a presidential tweet. Turns out that national security officials, contacted before the story ran, didn’t ask the Times to hold the story. Understandably. If you’re signaling to Putin that his grid will be at risk as long as he puts ours at risk, a front-page story in the New York Times is a pretty good way to get the word out. We’re starting to see a lot more casualties in the New Code War between the US and China. Broadcom has issued a $2 billion warning that has shaken the global chip sector. And Hollywood is whistling past the graveyard if it thinks that China is going to stop squeezing US film profits in China. And the adjustment to a divided global tech market keeps finding new pain points. Turns out that even the F-35 depends on a Chinese supply chain. Speaking of security holes, Nick Weaver breaks down the cause and significance of the Rowhammer exploit and its latest sibling, RAMBleed. And to complete the paranoia segment of the show, Nick explains just... Continue reading
Posted Jun 18, 2019 at Skating on Stilts
We kick off Episode 267 with Gus Hurwitz reading the runes to see whether the 50-year Chicago winter for antitrust plaintiffs is finally thawing in Silicon Valley. Gus thinks the predictions of global antitrust warming are overhyped. But he recognizes we’re seeing an awful lot of robins on the lawn: The rise of Margrethe Vestager in the EU, the enthusiasm of state AGs for suing Big Tech, and the piling on of Dem presidential candidates and the House of Representatives. Judge Koh’s Qualcomm decision is another straw in the wind, triggering criticism from Gus (“an undue extension of Aspen Skiing”) and me (“the FTC needs a national security minder when it ventures into privacy and competition law”). Matthew Heiman thinks I’m on the wrong page when I suggest that Silicon Valley’s suppression of conservative speech is the kind of detriment to consumer welfare that the antitrust laws should take into account, even in a Borkian world. I mock Austrian Greens for suing to censor those who called it a “fascist party” – stopping their mouths not just in Austria but around the world. Yeah, guys, that’ll show ‘em who the fascists are. Less funny is the European Court of Justice’s... Continue reading
Posted Jun 10, 2019 at Skating on Stilts
What can we do to counter Russian "hack and dox" interference with US election campaigns and candidates? A lot more than we think, as long as we're willing to open the first amendment Overton window. I posted my modest proposal on the topic over at Lawfare. Here's the gist: Of course, stopping the dissemination of such information raises real First Amendment questions, but the Supreme Court's pronouncements on this topic have been surprisingly qualified and leave plenty of room for legislation that would drain much of the fun out of Russian cyber-kompromat. In the leading case, Bartnicki v. Vopper, the court refused to enforce a statutory prohibition on disseminating the contents of illegally wiretapped conversations. The conversation in question was a cell phone call in which a member of a teachers' union said to the union's negotiator that if the school district didn't improve its offer to end a strike, "we're gonna have to go to their, their homes … to blow off their front porches, we'll have to do some work on some of those guys." The Supreme Court's opinion considered two principal justifications for a ban on dissemination of tapped conversations—deterring wiretapping and preserving privacy. The court dismissed... Continue reading
Posted Jun 5, 2019 at Skating on Stilts
If you’ve lost the Germans on privacy, you’ve lost Europe, and maybe the world. That’s the lesson that emerges from my conversation with David Kris and Paul Rosenzweig about the latest declaration that the German interior minister wants to force messaging apps to decrypt chats. This comes at the same time that industry and civil society groups are claiming that GCHQ’s “ghost proposal” for breaking end-to-end encryption should be rejected. The paper, signed by all the social media giants, says that GCHQ’s proposal will erode the trust that users place in Silicon Valley. I suggest that maybe that particular argument is well past its sell-by date. Speaking of trust, Paul outlines the latest tit-for-tat in the Silicon Curtain coming down between the US and China, as that country announces plans to publish an “unreliable entities” list of US companies. I note that the same spirit seems to be animating the announcement that China and Russia are transitioning their militaries from Microsoft Windows to other operating systems. Talk about a bonanza for the NSA: Just the coding errors alone will sustain its hackers for a generation – even in the unlikely event that the Chinese and Russians resist the temptation to... Continue reading
Posted Jun 3, 2019 at Skating on Stilts
Paul Rosenzweig leads off with This Week in China Tech Fear – an enduring and fecund feature in Washington these days. We cover the Trump Administration's plan to blacklist up to five Chinese surveillance companies, including Hikvision, for contributing to Uighur human rights violations in the West of China, DHS's rather bland warning that commercial Chinese drones pose a data risk for US users, and the difficulty US chipmakers are facing in getting "deemed export" licenses for Chinese nationals. We delve deeper into a remarkably shallow and agenda-driven New York Times article by Nicole Perlroth and Scott Shane that blames NSA for Baltimore's ransomware problem without ever asking why the city failed for two years to patch its systems. David Kris uses the story to take us into the Vulnerabilities Equities Process – and its flaws. There may be a lot – or nothing – to the Navy email "spyware" story, but David points out just how many of today's cyber issues it touches. With the added fillip of a "Go Air Force, Beat Navy" theme not usually sounded in cybersecurity stories. Paul expands on what I have called Cheapfakes (as opposed to Deep Fakes) – the Pelosi video manipulated... Continue reading
Posted May 28, 2019 at Skating on Stilts
We begin this episode with a quick tour of the 5-4 Apple antitrust decision that pitted two Trump appointees against each other. Matthew Heiman and I consider the differences in judging styles that produced the split -- and the role that 25 years of living with Silicon Valley “platform billionaires” may have played in the decision. Eric Emerson joins us for the first time to talk about the legal fallout from the latest tariff increases on Chinese products. Short version: companies have some short-term tactics to explore (country of origin, drawback, valuation), but large importers/resellers will have to grapple with larger and costlier strategies of supply chain diversification and localization. Meanwhile, China has not been taking the trade war lying down. In addition to its own tariff increases, it now seems to be enforcing its demanding cybersecurity law more aggressively against foreign firms. I suggest that we may also be seeing retaliation in Chinese courts as well. In related news, Nick Weaver and I debate the potentially sweeping new Executive Order on Securing the Information and Communications Technology and Services Supply Chain. Maury Shenk explains the UK Supreme Court ruling that expands the court’s authority over the UK’s intelligence agencies... Continue reading
Posted May 20, 2019 at Skating on Stilts
With apologies for the lateness of this post, Episode 263 of The Cyberlaw Podcast tells the sad tale of yet another US government leaker who unwisely trusted The Intercept not to compromise its source. As Nick Weaver points out, The Intercept also took forever to actually report on some of the material it received. In other news, Brian Egan and Nate Jones agree that Israel broke no new ground in bombing the headquarters of Hamas’s rudimentary hacking operation during active hostilities. Nick and I dig into the significance of China’s use of intrusion tools pioneered by NSA. We also question the New York Times’s grasp of the issue. The first overt cyberattack on the US electric grid was a bust, I note, but that’s not much comfort. How many years of being told “I’m washing my hair that night” does it take before you realize you’re not getting anywhere? The FCC probably thought China Mobile should have gotten the hint after eight years of no action on the company's application to provide US phone service, but just in case the message didn’t get through, the Commission finally pulled the plug last week. Delegating to Big Social the policing of terrorist... Continue reading
Posted May 17, 2019 at Skating on Stilts
Have the Chinese hired American lawyers to vet their cyberespionage tactics – or just someone who cares about opsec? Probably the latter, and if you’re wondering why China would suddenly care about opsec, look no further than Supermicro’s announcement that it will be leaving China after a Bloomberg story claiming that the company’s supply chain was compromised by Chinese actors. Nick Weaver, Joel Brenner, and I doubt the Bloomberg story, but it has cost Supermicro a lot of sales – and even if it isn’t true this time, the scale and insouciance of past Chinese cyberespionage make it inherently believable. Hence the company’s shift to other sources (and, maybe, a new caution on the part of Chinese government hackers). GDPR and the California Consumer Privacy Act (CCPA) may be the Dumb and Dumber of privacy law, but neither is going away. And for the next six months, California’s legislature will be struggling against a deadline to make sense of the CCPA. Meegan Brooks gives us an overview. But we in Washington can’t get too smug about California’s deadline-driven dysfunction. Congress also faces a year-end deadline to renew the Section 215 program, and even the executive branch hasn’t decided what it... Continue reading
Posted May 6, 2019 at Skating on Stilts
I don't want to bury the lede here. Probably the most interesting thing about this test is what hasn't happened. I haven't been suspended or warned by Facebook about linking to Infowars, and while Facebook has broken some of the links to Infowars, it has done so in a fashion so haphazard and incompetent that I doubt the breakage was intentional. Does this mean that Alex Jones is overhyping the Facebook "link ban"? Nah, that would make him a conspiracy-mongering paranoid ... oh. Never mind. Continue reading
Posted May 5, 2019 at Skating on Stilts
Has the Facebook censorship engine finally caught up with Facebook's censorship ambitions? My day 2 post, when it first went up, resolved to a deep link on Infowars about US unemployment reaching a 50-year low. When I reposted it with public access, though, the link resolved to a "Page Not Found" message -- on I thought maybe Facebook engineers had finally got their censorship engine up and running, but first I checked to see if Infowars had dropped the story. Nope, it still seems to be on the Infowars site, here:…/ But if this is the result of the censorship engine, it's still coughing and backfiring. More likely, the answer to this mystery lies in the details of ad tracking URLs. When the link went up, Facebook rewrote it to include a prefix: "fbclid=IwAR1P6by_S5-lBYmb6vbkhnLVohyIFZfgLqvFegLwIYfUApVNzI5CxogVp-s". I assume that the purpose of the prefix was to make sure Facebook could identify everyone who clicked on the link as they left Facebook's site. But for whatever reason, the prefix stopped working and stopped delivering people to the deeplinked story. The link still went to Infowars, but that site didn't recognize the prefix and therefore said that it couldn't find the page,... Continue reading
Posted May 5, 2019 at Skating on Stilts
My latest Facebook post: Day 2. I'm posting a link to an Infowars story taken from CNBC and headlined "JOBS SURGE, UNEMPLOYMENT FALLS TO LOWEST SINCE 1969."…/ Unlike last time, though, the link does not end at Infowars's landing page. Could it be that I'm inadvertently helping to beta test Facebook's censorship engine? Continue reading
Posted May 4, 2019 at Skating on Stilts
I'm conducting an experiment to see whether Facebook is really banning links to Alex Jones's nasty but not illegal site. Unfortunately, it means putting my Facebook account at risk of suspension or disappearance. Here's what I posted earlier today: According to the Atlantic, Facebook has decided that no one can link to Alex Jones's Infowars -- with the possible exception of posts that say mean things about the site: "Facebook and Instagram will remove any content containing Infowars videos, radio segments, or articles (unless the post is explicitly condemning the content), and Facebook will also remove any groups set up to share Infowars content and events promoting any of the banned extremist figures, according to a company spokesperson."…/instagram-and-faceboo…/588607/ I'm not a fan of Jones and his nasty conspiracy-mongering. But I'm also not a fan of Facebook telling me what I can and cannot say. So, as an experiment to see whether and how Facebook actually administers its censorship regime, I'm posting links to apparently accurate news stories on the Infowars site to see what Facebook does. If you never hear from me again, you'll know what happened! And here we go. A link to an Infowars story taken from... Continue reading
Posted May 3, 2019 at Skating on Stilts
In Episode 261, blockchain takes over the podcast again. We dive right into the recent activity from the SEC, namely, the Framework for “Investment Contract” Analysis of Digital Assets and the No-Action Letter issued to TurnKey Jet, Inc. (TurnKey) for a digital token. Gary Goldsholle noted this guidance has been eagerly anticipated since July 2017 when the SEC first applied the Howey Test to a digital token with the DAO report. The current framework focuses primarily on the reasonable expectation of profits and efforts of others prongs of the Howey Test. While the framework lays out a number of factors to consider when determining whether a token is a security, the practicality of those factors is still up for debate. Will Turner explained that the TurnKey No-Action Letter was most useful for parties interested in structuring a private, permissioned, centralized blockchain, but believes the guidance in the Framework would allow for alternative structures. The key from the SEC’s perspective is that there is no expectation of profits for token holders, since the token is a stablecoin pegged to the value of USD and there is no use of the token outside of TurnKey’s network. Jeff Bandman noted the irony that... Continue reading
Posted Apr 29, 2019 at Skating on Stilts
In this episode, Nick Weaver and I discuss new Internet regulations proposed in the UK. He’s mostly okay with its anti-nudge code for kids, but not with requiring proof of age to access adult material. I don’t see the problem; after all, who wouldn’t want to store their passport information with Pornhub? Sri Lanka’s government has suspended social media access in the wake of the Easter attack. As Matthew Heiman notes, the reaction in the West is more or less a shrug – far different from the universal contempt and rejection displayed toward governments who did much the same during the 2011 Arab Spring rebellions. What made the difference? I argue that it’s Putin’s remarkably successful 2016 social media counterattack on Hillary Clinton as payback for her social media campaign against him in 2011. DNS hijacking is just getting more brazen, according to a new Cisco Talos report. Nick and I talk about why that is and what could be done about it. Paul Rosenzweig, back from hiatus and feisty as ever, mocks the EU Commission for its on-again, off-again criticism of Kaspersky’s security. Short version: The Commission wants badly to play in cybersecurity because it’s the Hot New Thing,... Continue reading
Posted Apr 22, 2019 at Skating on Stilts
Our News Roundup is hip deep in China stories. The inconclusive EU - China summit gives Matthew Heiman and me a chance to explain why France understands – and hates – China’s geopolitical trade strategy more than most. Maury Shenk notes that the Pentagon’s reported plan to put a bunch of Chinese suppliers on a blacklist is a tribute to China’s own schedule of sectors where Western companies. are blacklisted. And Matthew discloses reason to believe that China has finally begun to use all the US personnel data it stole from OPM. I’m so worried it may yet turn my hair pink, at least for SF-86 purposes. And in a sign that it really is better to be lucky than to good, Matthew and I muse on how the Trump Administration’s China policy is reinforcing broader economic trends to make US companies reconsider their reliance on Chinese manufacturing. It’s not all China, though. To kick things off, Nick Weaver and I schadenfreude our way through an otherwise serious take on the Julian Assange story and its strikingly narrow Computer Fraud and Abuse Act charge – and why extradition is likely to be a pain. We also delve into the Google... Continue reading
Posted Apr 15, 2019 at Skating on Stilts
Our News Roundup leads with the long, slow death of Section 230 immunity. Nick Weaver explains why he thinks social media’s pursuit of engagement has led to a poisonous online environment, and Matthew Heiman replays the astonishing international consensus that Silicon Valley deserves the blame – and the regulation – for all that ails the Internet. The UK is considering holding social media execs liable for “harmful” content on their platforms. Australia has already passed a law to punish social media companies for failure to remove “abhorrent violent material.” And Singapore is happily drafting behind the West, avoiding for once the criticism that its press controls are out of step with the international community. Even Mark Zuckerberg is reading the writing on the wall and asking for regulation. I note that lost in the one-minute hate directed at social media is any notion that other countries shouldn’t be able to tell Americans what they can and can’t read. I also wonder whether the consensus that platforms should be editors will add to conservative doubts about maintaining Section 230 at all – and in the process endanger the US-Mexico-Canada Agreement that would enshrines Section 230 in US treaty obligations. Nate Jones... Continue reading
Posted Apr 8, 2019 at Skating on Stilts
In today’s News Roundup, Klon Kitchen adds to the sory of the North Korean Embassy invasion by an unknown group. Turns out some of the participants fled to the US and lawyered up, but the real tipoff about attribution is that they’ve given some of the data they stole to the FBI. That rules out CIA involvement right there. Nick Weaver talks about Hal Martin pleading guilty to unlawfully retaining massive amounts of classified NSA hacking data. It’s looking more and more as though Martin was just a packrat, making his sentence of nine years in prison about right. But as Nick points out, that leaves unexplained how the Russians got hold of so much NSA data themselves. Paul Hughes explains the seamy Europolitics behind the new foreign investment regulations that will take effect this month. Nick explains the deeply troubling compromise of update certs at ASUS and the company’s equally troubling response. I ask why the only agency with clear authority over an incident with important national security implications is the FTC. Nick and I comment on the FTC’s pending investigation of the privacy practices of seven Internet service providers. Speaking of sensitive data practices, Klon talks about the... Continue reading
Posted Apr 1, 2019 at Skating on Stilts
I know. The title could be talking about pretty much any national strategy written in the last 15 years. And that’s the point. In the interview, Dr. Amy Zegart and I discuss the national cyber strategy and what’s wrong with it, besides all the bloviating. We also explore the culture clash between DOD and Silicon Valley (especially Google), and whether the right response to the Mueller report would be to conduct a thorough investigation into how the Intelligence Community and Justice handled the collusion allegations at the start of the Trump Administration. As a bonus, Amy answers this burning question: “If a banana republic is a country where losing an election means getting criminally investigated, what do you call a country where winning an election means getting criminally investigated?” In the news roundup, we talk about the New Zealand massacre and whether six months from now it will feel as though we overreacted to distribution of the video of the attack. Along the way, we are amazed to discover that New Zealand actually still has a “Chief Censor.” If you thought the Boeing 737MAX approval cast the FAA in a bad light, there’s some good news for that embattled agency:... Continue reading
Posted Mar 25, 2019 at Skating on Stilts
In our interview, Elsa Kania and Sam Bendett explain what China and Russia have learned from the American way of warfighting – and from Russia’s success in Syria. The short answer: everything. But instead of leaving us smug, I argue it ought to leave us worried about complacency followed by unpleasant military surprises. Elsa and Sam both try to predict where the surprises might come from. Yogi Berra makes an appearance. In the News Roundup, David Kris explains the Fourth Circuit’s decision to turn a hostile spouse-swap dispute into an invitation to screw up the law of stored electronic communications for a generation. And in other litigation, a Trump-appointed judge dismisses a lawsuit charging Silicon Valley with unlawfully censoring the right. Nate Jones and I agree that, while the decision is broadly consistent with law, it may spell trouble for Silicon Valley in the long run. That’s because it depends on an idiosyncratic DC Court of Appeals interpretation of the District’s public accommodation law. I speculate that Alabama or Texas or Mississippi could easily draft a law prohibiting discrimination on the basis of viewpoint in public accommodations like,say, Internet platforms. Nick Weaver and I note the UN report that North... Continue reading
Posted Mar 18, 2019 at Skating on Stilts