A McLaughlin Group for cybersecurity

Episode 269 of the Cyberlaw Podcast

|The Volokh Conspiracy |

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 to defend himself on a future episode (not so much because the First Amendment applies to this podcast but because it would be fun).

Matthew Heiman spells out the strategy behind Facebook's proposed cryptocurrency. He thinks it's all about the data; I think it's all about WeChat. Whatever the motive, every regulatory body in Europe and the US has descended on the company to extract concessions – or perhaps to kill the currency outright, as our own Nick Weaver has proposed.

Maury Shenk reports on the US government's threat to limit Indian H-1B visas if India persists in its extreme data localization policies. I suggest that the fight may be as much about terrorism finance as protectionism.

This Week behind the Silicon Curtain: Apple is considering moving 15-30% of its production capacity out of China. Matthew and I agree that that's easier said than done, but the move is inevitable.

Gus lays out the difficulties that YouTube has had meeting the child protection requirements of COPPA and the FTC's growing interest in changing YouTube's approach to videos aimed at kids.

Is China's social credit rating system a Potemkin village? Bloomberg seems to think so, but Maury has his doubts. So, if you thought you could stop fearing the system and start laughing at it, better think again.

Finally, This Week in Karma: The medical billing firm whose cybersecurity failings resulted in multiple medical data breaches has filed for bankruptcy, evidently the result of liabilities arising from the breach.

Download the 269th Episode (mp3).

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The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.


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  1. “Maury Shenk reports on the US government’s threat to limit Indian H-1B visas if India persists in its extreme data localization policies.”

    You cons must be blowing a fuse over this one.

    One on hand, you must like the possible restriction on Indian immigration.

    On the other hand, the govt’s threat is in response to India’s protectionism and actions to curb international businesses (i.e. anti-globalization efforts).

    So. . . are you more for restricted immigration or continuing globalization?

  2. Mr. Baker,
    Would you agree that Iancu and Manhattan Cmty Access (plus last year’s NIFLA decision on compelled speech) serve as the death knell of Social Media regulation that that proposed by Senator Holly? I read MCA as holding “platforms” retain their First Amendment rights, just like “publishers.” Thus, a company taking advantage of the protections of 230 will retain their First Amendment rights. And Iancu then re-emphasizes that any viewpoint-based regulation will almost certainly fail. Finally, NIFLA re-affirms the broad protection for compelled speech.
    Senator Holly’s proposal to forbid social media platforms relying on 230 from censoring based on ideology would fail because (1) that social media platform retains its 1A rights (MCA); (2) the restriction on censorship is a form of compelled speech, which is a form of censorship (NIFLA); (3) restrictions based on ideology are by definition “viewpoint” (Iancu).

    1. or Senator Hawley

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