The Cyberlaw Podcast

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 Co...

This is our return-from-hiatus episode. Jordan Schneider kicks things off by recapping passage of a major U.S. semiconductor-building subsidy bill, while new contributor Brian Fleming talks with Nick Weaver about new regulatory investment restrictions and new export controls on (artificial Intelligence (AI) chips going to China . Jordan also covers a big corruption scandal arising from China's big...

Just when you thought you had a month free of the Cyberlaw Podcast, it turns out that we are persisting, at least a little. This month we offer a bonus episode, in which Dave Aitel and I interview Michael Fischerkeller, one of three authors of "Cyber Persistence Theory: Redefining National Security in Cyberspace."   The book is a detailed analysis of how cyberattacks and espionage work in the real...

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...

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 bl...

Dave Aitel introduces a deliciously shocking story about lawyers as victims and—maybe—co-conspirators in the hacking of adversaries' counsel to win legal disputes. The trick, it turns out, is figuring out how to benefit from hacked documents without actually dirtying one's hands with the hacking. And here too, a Shakespearean Henry (II this time) has the answer: hire a private investigator and ask...

It's that time again on the Congressional calendar. All the big, bipartisan tech initiatives that looked so good a few months ago are beginning to compete for time on the floor like fat men desperate to get through a small door. And tech lobbyists are doing their best to hinder the bills they hate while advancing those they like. We open the Cyberlaw Podcast by reviewing a few of the top contender...

This episode of the Cyberlaw Podcast begins by digging into a bill more likely to transform tech regulation than most of the proposals you've actually heard of—a bipartisan effort to repeat U.S. Senator John Cornyn's bipartisan success in transforming the Committee on Foreign Investment in the United States (CFIUS) four years ago. The new bill holds a mirror up to CFIUS, Matthew Heiman reports. Wh...

This bonus episode of the Cyberlaw Podcast is an interview with Amy Gajda, author of " Seek and Hide: The Tangled History of the Right to Privacy ." Her book is an accessible history of the often obscure and sometimes "curlicued" interaction between the individual right to privacy and the public's (or at least the press's) right to know. Gajda, a former journalist, turns what could have been a dry...

Francisco last week at the Rivest-Shamir-Adleman (RSA) conference.  We summarize what they said and offer our views of why they said it. Bobby Chesney, returning to the podcast after a long absence, helps us assess Russian warnings that the U.S. should expect  a "military clash" if it conducts cyberattacks against Russian critical infrastructure. Bobby, joined by Michael Ellis sees this as a routi...

If you've been worrying about how a leaky U.S. government can possibly compete with China's combination of economic might and autocratic government, this episode of the Cyberlaw Podcast has a few scraps of good news. The funniest, supplied by Dave Aitel, is the tale of the Chinese gamer who was so upset at the online performance of China's tanks that he demanded an upgrade. When it didn't happen,...

At least that's the lesson that Paul Rosenzweig and I distill from the recent 11 th Circuit decision mostly striking down Florida's law regulating social media platforms' content "moderation" rules . We disagree flamboyantly on pretty much everything else—including whether the court will intervene before judgment in a pending 5 th Circuit case where the appeals court stayed a district court's inju...

This week's Cyberlaw Podcast covers efforts to pull the Supreme Court into  litigation over the Texas law treating social media platforms like common carriers  and prohibiting them from discriminating based on viewpoint when they take posts down. I predict that the court won't overturn the appellate decision staying an unpersuasive district court opinion. Mark MacCarthy and I both think that the t...

Is the European Union (EU) about to rescue the FBI from Going Dark? Jamil Jaffer and Nate Jones tell us that a new directive aimed at preventing child sex abus e might just do the trick, a position backed by people who've been fighting the bureau on encryption for years .  The Biden administration is prepping to impose some of the toughest sanctions ever on Chinese camera maker Hikvision, Jordan S...

Retraction: An earlier episode of the Cyberlaw Podcast may have left the impression that I think Google hates mothers. I regret the error. It appears that, in reality, Google only hates Republican mothers who are running for office. But to all appearances, Google really, really hates them. A remarkable, and apparently damning study disclosed that during the most recent federal election campaign, G...

Whatever else the pundits are saying about the use of cyberattacks in the Ukraine war, Dave Aitel notes, they all believe it confirms their past predictions about cyberwar. Not much has been surprising about the cyber weapons the parties have deployed, Scott Shapiro agrees. The Ukrainians have been doxxing Russia's soldiers in Bucha and its spies around the world. The Russians have been attacking...

The theme of this episode of the Cyberlaw Podcast is, "Be careful what you wish for." Techlash regulation is burgeoning around the world. Mark MacCarthy   takes us through a week's worth of regulatory enthusiasm. Canada is planning to force Google and Facebook to pay Canadian news media for links. It sounds simple, but arriving at the right price—and the right recipients—will require a hefty dose...

Spurred by a Cyberspace Solarium op-ed , Nate Jones gives an overview of cybersecurity worries in the maritime sector, where there is plenty to worry about. I critique the U.S. government's December 2020 National Maritime Cybersecurity Strategy , a 36-page tome that, when the intro and summary and appendices and blank pages are subtracted, offers only eight pages of substance. Luckily, the Atlanti...

With the U.S. and Europe united in opposing Russia's attack on Ukraine, a few tough transatlantic disputes are being swept away—or at least under the rug. Most prominently, the data protection crisis touched off by Schrems 2 has been resolved in principle by a new framework agreement between the U.S. and the EU. Michael Ellis and Paul Rosenzweig trade insights on the deal and its prospects before...

A special reminder that we will be doing episode 400 live on video and with audience participation on March 28, 2022 at noon Eastern daylight time. So, mark your calendar and when the time comes, use this link to join the audience: https://riverside.fm/studio/the-cyberlaw-podcast-400   See you there! There's nothing like a serious shooting war to bring on paranoia and mistrust, and the Russian inv...

A special reminder that we will be doing episode 400 live on video and with audience participation on March 28, 2022 at noon Eastern daylight time. So mark your calendar and when the time comes, use this link to join the audience: https://riverside.fm/studio/the-cyberlaw-podcast-400 See you there!  For the third week in a row, we lead with cyber and Russia's invasion of Ukraine. Paul Rosenzweig co...

Much of this episode is devoted to new digital curtain falling across Europe. Gus Horwitz and Mark-MacCarthy review the tech boycott that has seen companies like Apple, Samsung, Microsoft and Adobe pull their service from Russia. Nick Weaver describes how Russia cracked down on independent Russian media outlets and blocked access to the websites of foreign media including the BBC and Facebook. Gus...

Much of this episode is devoted to how modern networks and media are influencing what has become a major shooting war between Russia and Ukraine. Dmitri Alperovitch gives a sweeping overview. Ukraine and its president, Volodymyr Zelenskyy, clearly won the initial stages of the war in cyberspace, turning broad Western sympathy into a deeper commitment with short videos from downtown Kyiv at a time...

Troops and sanctions and accusations are coming thick and fast in Ukraine as we record the podcast. Michael Ellis draws on his past experience at the National Security Council (NSC) to guess how things are going at the White House, and we both speculate on whether the conflict will turn into a cyberwar that draws the United States in. Neither of us thinks so, though for different reasons. Meanwhil...