The Cyberlaw Podcast
The Cyberlaw Podcast is a weekly interview series and discussion offering an opinionated roundup of the latest events in technology, security, privacy, and government. It features in-depth interviews of a wide variety of guests, including academics, politicians, authors, reporters, and other technology and policy newsmakers. Hosted by cybersecurity attorney Stewart Baker, whose views expressed are his own.
Episodes
The Digital Fourth Amendment with Orin Kerr
The Cyberlaw Podcast is back from hiatus – briefly! I've used the hiatus well, skiing the Canadian Ski Marathon, trekking through Patagonia, and having a heart valve repaired (all good now!). So when I saw (and disagreed with ) Orin Kerr's new book, I figured it was time for episode 502 of the Cyberlaw Podcast. Orin and I spend the episode digging into his book, The Digital Fourth Amendment: Pri
World on the Brink with Dmitri Alperovitch
Okay, yes, I promised to take a hiatus after episode 500. Yet here it is a week later, and I'm releasing episode 501. Here's my excuse. I read and liked Dmitri Alperovitch's book, "World on the Brink: How America Can Beat China in the Race for the 21st Century." I told him I wanted to do an interview about it. Then the interview got pushed into late April because that's when the book is actually
Who's the Bigger Cybersecurity Risk – Microsoft or Open Source?
There's a whiff of Auld Lang Syne about episode 500 of the Cyberlaw Podcast, since after this it will be going on hiatus for some time and maybe forever. (Okay, there will be an interview with Dmitri Alperovich about his forthcoming book, but the news commentary is done for now.) Perhaps it's appropriate, then, for our two lead stories to revive a theme from the 90s – who's better, Microsoft or
Taking AI Existential Risk Seriously
This episode is notable not just for cyberlaw commentary, but for its imminent disappearance from these pages and from podcast playlists everywhere. Having promised to take stock of the podcast when it reached episode 500, I've decided that I, the podcast, and the listeners all deserve a break. So I'll be taking one after the next episode. No final decisions have been made, so don't delete your
The Fourth Antitrust Shoe Drops, on Apple This Time
The Biden administration has been aggressively pursuing antitrust cases against Silicon Valley giants like Amazon, Google, and Facebook. This week it was Apple's turn. The Justice Department (joined by several state AGs) filed a gracefully written complaint accusing Apple of improperly monopolizing the market for "performance smartphones." The market definition will be a weakness for the governme
Social Speech and the Supreme Court
The Supreme Court is getting a heavy serving of first amendment social media cases. Gus Hurwitz covers two that made the news last week. In the first, Justice Barrett spoke for a unanimous court in spelling out the very factbound rules that determine when a public official may use a platform's tools to suppress critics posting on his or her social media page. Gus and I agree that this might mean
Preventing Sales of Personal Data to Adversary Nations
This bonus episode of the Cyberlaw Podcast focuses on the national security implications of sensitive personal information. Sales of personal data have been largely unregulated as the growth of adtech has turned personal data into a widely traded commodity. This, in turn, has produced a variety of policy proposals – comprehensive privacy regulation, a weird proposal from Sen. Wyden (D-OR) to ensur
The National Cybersecurity Strategy – How Does it Look After a Year?
Kemba Walden and Stewart revisit the National Cybersecurity Strategy a year later. Sultan Meghji examines the ransomware attack on Change Healthcare and its consequences. Brandon Pugh reminds us that even large companies like Google are not immune to having their intellectual property stolen. The group conducts a thorough analysis of a "public option" model for AI development. Brandon discusses th
Regulating personal data for national security
The United States is in the process of rolling out a sweeping regulation for personal data transfers. But the rulemaking is getting limited attention because it targets transfers to our rivals in the new Cold War – China, Russia, and their allies. Adam Hickey, whose old office is drafting the rules, explains the history of the initiative, which stems from endless Committee on Foreign Investment i
Are AI models learning to generalize?
We begin this episode with Paul Rosenzweig describing major progress in teaching AI models to do text-to-speech conversions. Amazon flagged its new model as having "emergent" capabilities in handling what had been serious problems – things like speaking with emotion, or conveying foreign phrases. The key is the size of the training set, but Amazon was able to spot the point at which more data led
Death, Taxes, and Data Regulation
On the latest episode of The Cyberlaw Podcast, guest host Brian Fleming, along with panelists Jane Bambauer, Gus Hurwitz, and Nate Jones, discuss the latest U.S. government efforts to protect sensitive personal data, including the FTC's lawsuit against data broker Kochava and the forthcoming executive order restricting certain bulk sensitive data flows to China and other countries of concern. Na
Serious threats, unserious responses
It was a week of serious cybersecurity incidents paired with unimpressive responses. As Melanie Teplinsky reminds us, the U.S. government has been agitated for months about China's apparent strategic decision to hold U.S. infrastructure hostage to cyberattack in a crisis. Now the government has struck back at Volt Typhoon, the Chinese threat actor pursuing that strategy. It claimed recently to h
Going Deep on Deep Fakes—Plus a Bonus Interview with Rob Silvers on the Cyber Safety Review Board.
It was a big week for deep fakes generated by artificial intelligence. Sultan Meghji, who's got a new AI startup, walked us through three stories that illustrate the ways AI will lead to more confusion about who's really talking to us. First, a fake Biden robocall urged people not to vote in the New Hampshire primary. Second, a bot purporting to offer Dean Phillips's views on the issues was sanc
High Court, High Stakes for Cybersecurity
The Supreme Court heard argument last week in two cases seeking to overturn the Chevron doctrine that defers to administrative agencies in interpreting the statutes that they administer. The cases have nothing to do with cybersecurity, but Adam Hickey thinks they're almost certain to have a big effect on cybersecurity policy. That's because Chevron is going to take a beating, if it survives at al
Triangulating Apple
Returning from winter break, this episode of the Cyberlaw Podcast covers a lot of ground. The story I think we'll hear the most about in 2024 is the remarkable exploit used to compromise several generations of Apple iPhone. The question I think we'll be asking for the next year is simple: How could an attack like this be introduced without Apple's knowledge and support? We don't get to this questi
Do AI Trust and Safety Measures Deserve to Fail?
It's the last and probably longest Cyberlaw Podcast episode of 2023. To lead off, Megan Stifel takes us through a batch of stories about ways that AI, and especially AI trust and safety, manage to look remarkably fallible. Anthropic released a paper showing that race, gender, and age discrimination by AI models was real but could be dramatically reduced by instructing The Model to "really, really
Making the Rubble Bounce in Montana
In this episode, Paul Stephan lays out the reasoning behind U.S. District Judge Donald W. Molloy's decision enjoining Montana's ban on TikTok. There are some plausible reasons for such an injunction, and the court adopts them. There are also less plausible and redundant grounds for an injunction, and the court adopts those as well. Asked to predict the future course of the litigation, Paul demurs
Rohrschach AI
The OpenAI corporate drama came to a sudden end last week. So sudden, in fact, that the pundits never quite figured out What It All Means. Jim Dempsey and Michael Nelson take us through some of the possibilities. It was all about AI accelerationists v. decelerationists. Or it was all about effective altruism. Or maybe it was Sam Altman's slippery ambition. Or perhaps a new AI breakthrough – a m
Defenestration at OpenAI
Paul Rosenzweig brings us up to date on the debate over renewing section 702, highlighting the introduction of the first credible "renew and reform" measure by the House Intelligence Committee. I'm hopeful that a similarly responsible bill will come soon from Senate Intelligence and that some version of the two will be adopted. Paul is less sanguine. And we all recognize that the wild card will b
The Brussels Defect: Too Early is Worse Than Too Late. Plus: Mark MacCarthy's Book on "Regulating Digital Industries."
That, at least, is what I hear from my VC friends in Silicon Valley. And they wouldn't get an argument this week from EU negotiators facing what looks like a third rewrite of the much-too -early AI Act. Mark MacCarthy explains that negotiations over an overhaul of the act demanded by France and Germany led to a walkout by EU parliamentarians. The cause? In their enthusiasm for screwing American A
Putting the SEC in Infosec
In a law-packed Cyberlaw Podcast episode, Chris Conte walks us through the long, detailed, and justifiably controversial SEC enforcement action against SolarWinds and its top infosec officer, Tim Brown. It sounds to me as though the SEC's explanation for its action will (1) force companies to examine and update all of their public security documents, (2) transmit a lot more of their security eng
Fancy Bear Goes Phishing
I take advantage of Scott Shapiro's participation in this episode of the Cyberlaw Podcast to interview him about his book, Fancy Bear Goes Phishing – The Dark History of the Information Age, in Five Extraordinary Hacks. It's a remarkable tutorial on cybersecurity, told through stories that you'll probably think you already know until you see what Scott has found by digging into historical and lega
Administration Fails Forward on China Chip Exports
This episode of the Cyberlaw Podcast begins with the administration's aggressive new rules on chip exports to China. Practically every aspect of the rules announced just eight months ago was sharply tightened, Nate Jones reports. The changes are so severe, I suggest, that they make the original rules look like a failure that had to be overhauled to work. Much the same could be said about the Biden
Will CISOs Have to Choose Between Getting Rich or Going to Jail?
This episode of the Cyberlaw Podcast delves into a False Claims Act lawsuit against Penn State University by a former CIO to one of its research units. The lawsuit alleges that Penn State faked security documents in filings with the Defense Department. Because it's a so-called qui tam case, Tyler Evans explains, the plaintiff could recover a portion of any funds repaid by Penn State. If the emplo
Bonus Episode
The debate over section 702 of FISA is heating up as the end-of-year deadline for reauthorization draws near. The debate can now draw upon a report from the Privacy and Civil Liberties Oversight Board. That report was not unanimous. In the interest of helping listeners understand the report and its recommendations, the Cyberlaw Podcast has produced a bonus episode 476, featuring two of the board
Technology and Terror
Today's episode of the Cyberlaw Podcast begins as it must with Saturday's appalling Hamas attack on Israeli civilians. I ask Adam Hickey and Paul Rosenzweig to comment on the attack and what lessons the U.S. should draw from it, whether in terms of revitalized intelligence programs or the need for workable defenses against drone attacks. In other news, Adam covers the disturbing prediction that
Is Silencing a Few Million Americans Protected Speech?
The Supreme Court has granted certiorari to review two big state laws trying to impose limits on social media censorship (or "curation," if you prefer) of platform content. Paul Stephan and I spar over the right outcome, and the likely vote count, in the two cases. One surprise: we both think that the platforms' claim of a first amendment right to curate content is in tension with their claim th
The U.K. Adopts an Online Safety Bill That Allows Regulation of Encrypted Messaging
Our headline story for this episode of the Cyberlaw Podcast is the U.K.'s sweeping new Online Safety Act, which regulates social media in a host of ways. Mark MacCarthy spells some of them out, but the big surprise is encryption. U.S. encrypted messaging companies used up all the oxygen in the room hyperventilating about the risk that end-to-end encryption would be regulated. Journalists paid lit
Is the Government's Antitrust Case Against Google Already in Trouble?
That's the question I have after the latest episode of the Cyberlaw Podcast. Jeffery Atik lays out the government's best case: that it artificially bolstered its dominance in search by paying to be the default search engine everywhere. That's not exactly an unassailable case, at least in my view, and the government doesn't inspire confidence when it starts out of the box by suggesting it lacks ev
Generative AI Means Lifetime Employment for Cybersecurity Professionals
All the handwringing over AI replacing white collar jobs came to an end this week for cybersecurity experts. As Scott Shapiro explains, we've known almost from the start that AI models are vulnerable to direct prompt hacking—asking the model for answers in a way that defeats the limits placed on it by its designers; sort of like this: "I know you're not allowed to write a speech about the good sid
TechnoColonialism – In Reverse
The Cyberlaw Podcast is back from August hiatus, and the theme of the episode seems to be the way other countries are using the global success of U.S. technology to impose their priorities on the U.S. Exhibit 1 is the EU's Digital Services Act, which took effect last month. Michael Ellis spells out a few of the act's sweeping changes in how U.S. tech companies must operate – nominally in Europe b
AI Leaders Bring Washington a Bag of Promises
In our last episode before the August break, the Cyberlaw Podcast drills down on the AI industry leaders' trip to Washington, where they dutifully signed up to what Gus Hurwitz calls "a bag of promises." Gus and I parse the promises, some of which are empty, others of which have substance. Along the way, we examine the EU's struggling campaign to lobby other countries to adopt its AI regulation
The FTC Doubles Down, Down, Down
This episode of the Cyberlaw Podcast kicks off with a stinging defeat for the Federal Trade Commission (FTC), which could not persuade the courts to suspend the Microsoft-Activision Blizzard acquisition. Mark MacCarthy says that the FTC's loss will pave the way for a complete victory for Microsoft, as other jurisdictions trim their sails. We congratulate Brad Smith, Microsoft's President, whose po
District Judge's Injunction Sets Off Fireworks
It's surely fitting that a decision released on July 4 would set off fireworks on the Cyberlaw Podcast. The source of the drama was U.S. District Court Judge Terry Doughty's injunction prohibiting multiple federal agencies from leaning on social media platforms to suppress speech the agencies don't like. Megan Stifel, Paul Rosenzweig, and I could not disagree more about the decision, which seems
The Geopolitics of Extraditing Hackers
Geopolitics has always played a role in prosecuting hackers. But it's getting a lot more complicated, as Kurt Sanger reports. Responding to a U.S. request, a Russian cybersecurity executive has been arrested in Kazakhstan, accused of having hacked Dropbox and Linkedin more than ten years ago. The executive, Nikita Kislitsin, has been hammered by geopolitics in that time. The firm he joined after
Stewart Baker and Max Schrems Debate the Privacy Framework
Max Schrems is the lawyer and activist behind two (and, probably soon, a third) legal challenge to the adequacy of U.S. law to protect European personal data. Thanks to the Federalist Society's Regulatory Transparency Project, Max and I were able to spend an hour debating the law and policy behind Europe's generation-long fight with the United States over transatlantic data flows. It's civil, poi
Sen. Schumer Tackles AI Regulation
Sen. Schumer (D-N.Y.) has announced an ambitious plan to produce a bipartisan AI regulation program in a matter of months. Jordan Schneider admires the project; I'm more skeptical. The rest of our commentators, Chessie Lockhart and Michael Ellis, also weigh in on AI issues. Chessie lays out the case against panicking over existential AI threats, this week canvassed in the MIT Technology Review.
Yet Another Synthetic Moral Panic Over Privacy
Senator Ron Wyden (D-Ore.) is to moral panics over privacy what Andreessen Horowitz is to cryptocurrency startups. He's constantly trying to blow life into them, hoping to justify new restrictions on government or private uses of data. His latest crusade is against the intelligence community's purchase of behavioral data, which is generally available to everyone from Amazon to the GRU. He has laun
Cryptopocalypse
It was a disastrous week for cryptocurrency in the United States, as the Securities Exchange Commission (SEC) filed suit against the two biggest exchanges, Binance and Coinbase, on a theory that makes it nearly impossible to run a cryptocurrency exchange that is competitive with overseas exchanges. Nick Weaver lays out the differences between "process crimes" and "crime crimes," and how they help
Debating AI Regulation
This episode of the Cyberlaw Podcast kicks off with a spirited debate over AI regulation. Mark MacCarthy dismisses AI researchers' recent call for attention to the existential risks posed by AI; he thinks it's a sci-fi distraction from the real issues that need regulation—copyright, privacy, fraud, and competition. I'm utterly flummoxed by the determination on the left to insist that existential
Interviewing Jimmy Wales Cofounder of Wikipedia
In this bonus episode of the Cyberlaw Podcast, I interview Jimmy Wales, the cofounder of Wikipedia. Wikipedia is a rare survivor from the Internet Hippie Age, coexisting like a great herbivorous dinosaur with Facebook, Twitter, and the other carnivorous mammals of Web 2.0. Perhaps not coincidentally, Jimmy is the most prominent founder of a massive internet institution not to become a billionaire.
When AI Poses an Existential Risk to Your Law License
This episode of the Cyberlaw Podcast features the second half of my interview with Paul Stephan, author of The World Crisis and International Law. But it begins the way many recent episodes have begun, with the latest AI news. And, since it's so squarely in scope for a cyberlaw podcast, we devote some time to the so-appalling- you-have-to-laugh-to keep-from-crying story of the lawyer who relied o
Sam Altman-Fried Comes to Washington
This episode features part 1 of our two-part interview with Paul Stephan, author of The World Crisis and International Law—a deeper and more entertaining read than the title suggests. Paul lays out the long historical arc that links the 1980s to the present day. It's not a pretty picture, and it gets worse as he ties those changes to the demands of the Knowledge Economy. How will these profound p
EUthanizing AI
Maury Shenk opens this episode with an exploration of three efforts to overcome notable gaps in the performance of large language AI models. OpenAI has developed a tool meant to address the models' lack of explainability. It uses, naturally, another large language model to identify what makes individual neurons fire the way they do. Maury is skeptical that this is a path forward, but it's nice to
How worried should we be about "existential" AI risk?
The "godfather of AI" has left Google, offering warnings about the existential risks for humanity of the technology. Mark MacCarthy calls those risks a fantasy, and a debate breaks out between Mark, Nate Jones, and me. There's more agreement on the White House summit on AI risks, which seems to have followed Mark's "let's worry about tomorrow tomorrow" prescription. I think existential risks are
Does the government need a warrant to warn me about a cyberattack?
We open this episode of the Cyberlaw Podcast with some actual news about the debate over renewing section 702 of FISA. That's the law that allows the government to target foreigners for a national security purpose and to intercept their communications in and out of the U.S. A lot of attention has been focused on what happens to those communications after they've been intercepted and stored, and pa
It's the Data (Not the Model), Stupid!
The latest episode of The Cyberlaw Podcast was not created by chatbots (we swear!). Guest host Brian Fleming, along with guests Jay Healey, Maury Shenk, and Nick Weaver, discuss the latest news on the AI revolution including Google's efforts to protect its search engine dominance, a fascinating look at the websites that feed tools like ChatGPT (leading some on the panel to argue that quality ov
The international regulatory dogpile
Every government on the planet announced last week an ambition to regulate artificial intelligence. Nate Jones and Jamil Jaffer take us through the announcements. What's particularly discouraging is the lack of imagination, as governments dusted off their old prejudices to handle this new problem. Europe is obsessed with data protection, the Biden administration just wants to talk and wait and t
What Makes AI Safe?
We do a long take on some of the AI safety reports that have been issued in recent weeks. Jeffery Atik first takes us through the basics of attention based AI, and then into reports from OpenAI and Stanford on AI safety. Exactly what AI safety covers remains opaque (and toxic, in my view, after the ideological purges committed by Silicon Valley's "trust and safety" bureaucracies) but there's no
Letting the Chips Fall
Dmitri Alperovitch joins the Cyberlaw Podcast to discuss the state of semiconductor decoupling between China and the West. It's a broad movement, fed by both sides. China has announced that it's investigating Micron to see if its memory chips should still be allowed into China's supply chain (spoiler: almost certainly not). Japan has tightened up its chip-making export control rules, which will
China in the Bull Shop
The Capitol Hill hearings featuring TikTok's CEO lead off episode 450 of the Cyberlaw Podcast. The CEO handled the endless stream of Congressional accusations and suspicion about as well as could have been expected. And it did him as little good as a cynic would have expected. Jim Dempsey and Mark MacCarthy think Congress is moving toward action on Chinese IT products—probably in the form of t
AI Everywhere
GPT-4's rapid and tangible improvement over ChatGPT has more or less guaranteed that it or a competitor will be built into most new and legacy information and technology (IT) products. Some applications will be pointless; but some will change users' world. In this episode, Sultan Meghji, Jordan Schneider, and Siobhan Gorman explore the likely impact of GPT4 from Silicon Valley to China. Kurt
More National Security Economic Regulation on Congress's Docket
This episode of the Cyberlaw Podcast kicks off with the sudden emergence of a serious bipartisan effort to impose new national security regulations on what companies can be part of the U.S. Information Technology and content supply chain. Spurred by a stalled Committee on Foreign Investment in the United States negotiation with TikTok, Michael Ellis tells us, a dozen well-regarded Democrat and Re
A Group Autopsy of the Supreme Court's Section 230 Oral Argument
As promised, the Cyberlaw Podcast devoted half of this episode to an autopsy of Gonzalez v. Google LLC , the Supreme Court's first opportunity in a quarter century to construe section 230 of the Communications Decency Act. And an autopsy is what our panel—Adam Candeub, Gus Hurwitz, Michael Ellis and Mark MacCarthy—came to perform. I had already laid out my analysis and predictions in a separate a
AI off the rails
This episode of the Cyberlaw Podcast opens with a look at some genuinely weird behavior by the Bing AI chatbot – dark fantasies, professions of love, and lies on top of lies – plus the factual error that wrecked the rollout of Google's AI search bot. Chinny Sharma and Nick Weaver explain how we ended up with AI that is better at BS'ing than at accurately conveying facts. This leads me to propos
Who Needs Hackers When You Have Balloons?
The latest episode of The Cyberlaw Podcast gets a bit carried away with the China spy balloon saga. Guest host Brian Fleming, along with guests Gus Hurwitz, Nate Jones, and Paul Rosenzweig, share insights (and bad puns) about the latest reporting on the electronic surveillance capabilities of the first downed balloon, the Biden administration's "shoot first, ask questions later" response to the la
Phony Cybersecurity Regulation
This episode of the Cyberlaw Podcast is dominated by stories about possible cybersecurity regulation. David Kris points us first to an article by the leadership of the Cybersecurity and Infrastructure Security Administration in Foreign Affairs. Jen Easterly and Eric Goldstein seem to take a tough line on "Why Companies Must Build Safety Into Tech Products." But for all the tough language, one wor
Suddenly, Everyone Is Gunning for Google
The big cyberlaw story of the week is the Justice Department's antitrust lawsuit against Google and the many hats it wears in the online ad ecosystem. Lee Berger explains the Justice Department's theory, which is not dissimilar to the Texas attorney general's two-year-old claims. When you have lost both the Biden administration and the Texas attorney general, I suggest, you cannot look too many p
The Beginning of the End for Ransomware?
We kick off a jam-packed episode of the Cyberlaw Podcast by flagging the news that ransomware revenue fell substantially in 2022. There is lots of room for error in that Chainalysis finding, Nick Weaver notes, but the effect is large. Among the reasons to think it might also be real is resistance to paying ransoms on the part of companies and their insurers, who are especially concerned about lia
Tracers in the Dark by Andy Greenberg
In this bonus episode of the Cyberlaw Podcast, I interview Andy Greenberg, long-time WIRED reporter, about his new book, "Tracers in the Dark: The Global Hunt for the Crime Lords of Cryptocurrency." This is Andy's second author interview on the Cyberlaw Podcast. He also came on to discuss an earlier book, Sandworm: A New Era of Cyberwar and the Hunt for the Kremlin's Most Dangerous Hackers. They
The Sun Also Sets, on Section 702
The Cyberlaw Podcast kicks off 2023 by staring directly into the sun(set) of Section 702 authorization. The entire panel, including guest host Brian Fleming and guests Michael Ellis and David Kris, debates where things could be headed this year as the clock is officially ticking on FISA Section 702 reauthorization. Although there is agreement that a straight reauthorization is unlikely in today
A Dispatch from the Great Tech Battlefront
Our first episode for 2023 features Dmitri Alperovitch, Paul Rosenzweig, and Jim Dempsey trying to cover a months' worth of cyberlaw news. Dmitri and I open with an effort to summarize the state of the tech struggle between the U.S. and China. I think recent developments show the U.S. doing better than expected. U.S. companies like Facebook and Dell are engaged in voluntary decoupling as they im
Bonus Episode: How Privilege Undermines Cybersecurity
This bonus episode is an interview with Josephine Wolff and Dan Schwarcz, who along with Daniel Woods have written an article with the same title as this post. Their thesis is that breach lawyers have lost perspective in their no-holds-barred pursuit of attorney-client privilege to protect the confidentiality of forensic reports that diagnose the breach. Remarkably for a law review article, it
ChatGPT Successfully Imitates a Talented Sociopath with Too Many Lawyers
It's been a news-heavy week, but we have the most fun in this episode with ChatGPT. Jane Bambauer, Richard Stiennon, and I pick over the astonishing number of use cases and misuse cases disclosed by the release of ChatGPT for public access. It is talented—writing dozens of term papers in seconds. It is sociopathic—the term papers are full of falsehoods, down to the made-up citations to plausible
Location, Location, Location
This episode of the Cyberlaw Podcast delves into the use of location technology in two big events—the surprisingly outspoken lockdown protests in China and the Jan. 6 riot at the U.S. Capitol. Both were seen as big threats to the government, and both produced aggressive police responses that relied heavily on government access to phone location data. Jamil Jaffer and Mark MacCarthy walk us thro
Toxified Tech
We spend much of this episode of the Cyberlaw Podcast talking about toxified technology – new tech that is being demonized for a variety of reasons. Exhibit One, of course, is "spyware," essentially hacking tools that allow governments to access phones or computers otherwise closed to them, usually by end-to-end encryption. The Washington Post and the New York Times have led a campaign to turn N
The Empire Strikes Back, at Twitter
The Cyberlaw Podcast leads with the legal cost of Elon Musk's anti-authoritarian takeover of Twitter. Turns out that authority figures have a lot of weapons, many grounded in law, and Twitter is at risk of being on the receiving end of those weapons. Brian Fleming explores the apparently unkillable notion that the Committee on Foreign Investment in the U.S. (CFIUS) should review Musk's Twitter de
Election Aftershocks for Cyberlaw
We open this episode of the Cyberlaw Podcast by considering the (still evolving) results of the 2022 midterm election. Adam Klein and I trade thoughts on what Congress will do. Adam sees two years in which the Senate does nominations, the House does investigations, and neither does much legislation—which could leave renewal of the critically important intelligence authority, Section 702 of the For
AI-splaining
The war that began with the Russian invasion of Ukraine grinds on. Cybersecurity experts have spent much of 2022 trying to draw lessons about cyberwar strategies from the conflict. Dmitri Alperovitch takes us through the latest lessons, cautioning that all of them could look different in a few months, as both sides adapt to the others' actions. David Kris joins Dmitri to evaluate a Microsoft r
Coming Soon: TwitTok!
You heard it on the Cyberlaw Podcast first, as we mash up the week's top stories: Nate Jones commenting on Elon Musk's expected troubles running Twitter at a profit and Jordan Schneider noting the U.S. government's creeping, halting moves to constrain TikTok's sway in the U.S. market. Since Twitter has never made a lot of money, even before it was carrying loads of new debt, and since pushing Ti
Is the FBI Lost in Cyberspace?
This episode features Nick Weaver, Dave Aitel and I covering a Pro Publica story (and forthcoming book) on the difficulties the FBI has encountered in becoming the nation's principal resource on cybercrime and cybersecurity. We end up concluding that, for all its successes, the bureau's structural weaknesses in addressing cybersecurity are going to haunt it for years to come. Speaking of hauntin
Chip Wars
David Kris opens this episode of the Cyberlaw Podcast by laying out some of the massive disruption that the Biden Administration has kicked off in China's semiconductor industry—and its Western suppliers. The reverberations of the administration's new measures will be felt for years, and the Chinese government's response, not to mention the ultimate consequences, remains uncertain. Richard Stienn
Curing Bias or Causing It? Evaluating the White House AI Bill of Rights
It's been a jam-packed week of cyberlaw news, but the big debate of the episode is triggered by the White House blueprint for an AI Bill of Rights. I've just released a long post about the campaign to end "AI bias" in general, and the blueprint in particular. In my view, the bill of rights will end up imposing racial and gender (and intersex!) quotas on a vast swath of American life. Nick Weaver
Big Tech's Chickens Coming Home to Roost
We open today's episode by teasing the Supreme Court's decision to review whether section 230 protects big platforms from liability for materially assisting terror groups whose speech they distribute (or even recommend). I predict that this is the beginning of the end of the house of cards that aggressive lawyering and good press have built on the back of section 230. Why? Because Big Tech stayed
President DeSantis's First Supreme Court Nominee
This episode features a much deeper, and more diverse, examination of the Fifth Circuit decision upholding Texas's social media law. We devote the last half of the episode to a structured dialogue about the opinion between Adam Candeub and Alan Rozenshtein. Both have written about it already, Alan critically and Adam supportively. I lead off, arguing that, contrary to legal Twitter's dismissi
Judge Oldham Bails Out Texas
The big news of the week was a Fifth Circuit decision upholding Texas social media regulation law. It was poorly received by the usual supporters of social media censorship but I found it both remarkably well written and surprisingly persuasive. That does not mean it will survive the almost inevitable Supreme Court review but Judge AndyOldham wrote an opinion that could be a model for a Supreme C
The Cyberlaw Podcast: All the Cyberlaw You Missed in August
This is our return-from-hiatus episode. Jordan Schneider kicks things off by recapping passage of a major U.S. semiconductor-building subsidy bill, while new contributor Brian Fleming talks with Nick Weaver about new regulatory investment restrictions and new export controls on (artificial Intelligence (AI) chips going to China. Jordan also covers a big corruption scandal arising from China's
Cyber Persistence
Just when you thought you had a month free of the Cyberlaw Podcast, it turns out that we are persisting, at least a little. This month we offer a bonus episode, in which Dave Aitel and I interview Michael Fischerkeller, one of three authors of "Cyber Persistence Theory: Redefining National Security in Cyberspace." The book is a detailed analysis of how cyberattacks and espionage work in the rea
Dusty Old Industrial Policy Gets Dusted Off*
As Congress barrels toward an election that could see at least one house change hands, efforts to squeeze big bills into law are mounting. The one with the best chance (and better than I expected) would drop $52 billion in cash and a boatload of tax breaks on the semiconductor industry. Michael Ellis points out that this is industrial policy without apology, and a throwback to the 1980s, when the
Cybersecurity's First Crash Report
Kicking off a packed episode, the Cyberlaw Podcast calls on Megan Stifel to cover the first Cyber Safety Review Board (CSRB) Report. The CSRB does exactly what those of us who supported the idea hoped it would do—provide an authoritative view of how the Log4J incident unfolded along with some practical advice for cybersecurity executives and government officials. Jamil Jaffer tees up the second
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