Trump Derangement and the Trading with the Enemy Act

Episode 275 of the Cyberlaw Podcast

|The Volokh Conspiracy |

And we're back with a podcast episode that picks the August events that will mean the most for technology law and policy this year. Dave Aitel opens, telling us that Cyber Command gave the world a hint of what "defending forward" looks like with an operation that may have knocked the Iranian Revolutionary Guard's tanker attacks for a long-lasting loop.

Next, David Kris lifts the curtain on China's approach to information warfare, driven by the Hong Kong protests and its regional hegemonic ambitions. Speaking of China, it looks as though a determination to bring the Uighur population to heel ledChina to create a website devoted to compromising iPhones, in the process disclosing a few zero-days and compromising anybody who viewed the site. Dave Aitel teases out some of the less obvious lessons. He criticizes Apple for not giving security-minded users the tools they need to protect themselves. But he resists my suggestion that the FBI, which first flagged the site for Google's Project Zero, went to Google because Apple wasn't responsive to the Bureau's concerns. (Alternative explanation: If you embarrass the FBI in court, don't be surprised if they embarrass you a few years later.)

One lesson of these fights is that the US-China trade war is a lot more than a trade war. It's a grinding, continental decoupling drift that the trade war is driving but which the Trump Administration probably couldn't stop now if the president wanted to. We puzzle over exactly what the president does want. Then I shift to mocking CNN for its Trump derangement and inaccuracy (yes, it's an easy target, but give me a break, I've been away for a month): Press claims that the president couldn't "hereby order" US companies to speed their decoupling from China are just wrong as a matter of law. In fact, the relevant law, still in effect with modest changes, used to be called the Trading with the Enemy Act. And it's been used to "hereby order" the decoupling of the US economy from countries like Nazi Germany, among others. Whether such an order in the case of China would be "lawful but stupid" is another question.

August saw more flareups over Silicon Valley censorship of conservative speech. Facebook has hired former Sen. Kyl to investigate claims of anticonservative bias in its content moderation, and the White House is reportedly drafting an executive order to tackle Silicon Valley bias. I ask whether either the FTC or FCC can really be expected to take up the regulatory cudgels on this issue and suggest that Bill Barr's Justice Department might have more gumption—and enough tools to enforce strictures against political bias in platform censorship.

We close with the most mocked piece of tech-world litigation in recent weeks – Crown Sterling's lawsuit against BlackHat for not enforcing its code of conduct while the company was delivering a widely disparaged sponsored talk about its new crypto system. Dave Aitel, who runs a cybersecurity conference of his own, lays out the difficulties of writing and enforcing a conference code of conduct. I play Devil's Advocate on behalf of Crown Sterling, and by the end, Dave finds himself surprised to feel just a bit of Sympathy for the Devil.

Download the 275th Episode (mp3).

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  1. If our only trade war was with China it would be tempting to cut this Administration a little slack. But it’s not.

    TWEA doesn’t apply. IEEPA, maybe, but I doubt it.

    1. Global Magnitsky Act

      Many [probably most] Chinese businesses have full or partial government or PLA ownership. The Uyghurs and Hong Kong provide all the justification one needs to sanction hundreds of officials, American companies can’t deal with those people and companies.

      1. The time to decide not to trade with China was BEFORE all our manufacturing moved there.

        1. Well, speaking as a tooling engineer in America, it’s fortunate then that all our manufacturing hasn’t moved there yet.

          Too much? Yeah, no question about it. Beyond the point of no return? I think not quite. We’re going to be a few years rebuilding our capacity to do domestically some of the things we foolishly let China take over for us, but we can do it.

          Have to do it. As a matter of strategic necessity, you can’t allow yourself to become totally dependent on a hostile country.

          1. “Well, speaking as a tooling engineer in America, it’s fortunate then that all our manufacturing hasn’t moved there yet.”

            In this context, “all” refers to all the manufacturing that moved, not all the manufacturing that didn’t.

            “We’re going to be a few years rebuilding our capacity to do domestically some of the things we foolishly let China take over for us,”

            This was my point, thanks.

        2. “The time to decide not to trade with China was BEFORE all our manufacturing moved there.”

          Agreed. Letting China join the WTO was an historic mistake.

          American companies however do not actually manufacture much in China but electronics/computers and plastic toys and housewares. Clothing has already moved on. Our cars are US made including “imports”.

          Never too late to fix our mistake no matter the very temporary cost.

  2. Does Trump Derangement Syndrome only apply to people criticizing the president? I think it would equally apply to those reflexively defending the president when he does something particularly shameful . . . that seems just as deranged, if not more so.

    1. Good point! I must steal this from you!

      1. In the sense that I’ve been pointing out that TDS comes in two flavors for about two years now, I’m not sure you should expect anyone to notice.

        Since the bad bad Democrats wouldn’t let Trump build a wall tall enough to keep the hurricanes out, he’s decided to go nuclear. You know, to protect us from those category 5 hurricanes he’s never heard of before.

        1. You’re not being fair to Trump. He heard of Cat 5 hurricanes, then had never heard of them, then had heard of them, then hadn’t heard of them, then . . .

          If you don’t like his latest response, just wait a few minutes. (Shamelessly stealing from Twain’s observation about New England weather.)

          1. He got caught altering the forecast map, because he wouldn’t admit that he was wrong when he said it was going to hit Alabama. Then he suddenly didn’t know anything about the map, including (specifically) who drew on the copy he showed to people, but not any other copy of that map, with a Sharpie.

  3. “Press claims that the president couldn’t “hereby order” US companies to speed their decoupling from China are just wrong as a matter of law.”

    It would be embarrassing how often people claim Trump doesn’t have the legal authority to do this or that, when there’s directly on point statutory language giving him the authority. If, that is, the people doing it were capable of being embarrassed.

    This is, of course, quite aside from the question of whether or not Congress was stupid to give Presidents this sort of legal authority…

    1. My bet would be there’s a great deal of overlap of those who claimed Obama had authority to do whatever he wanted regardless of statutory language.

      I’d also like to point out the irony of how similar the groups are that said Obama could do anything he wanted, and those who say Trump can do anything he wants (or close enough to it). I bet they’d both howl and scream at being told how similar they really are, and that gives me warm fuzzies.

    2. There’s also the point that an American president made the ostensible declaration (‘hereby ordered’) using his Tweeterator.

  4. “August saw more flareups over Silicon Valley censorship of conservative speech.”

    The Volokh Conspiracy, which banned Artie Ray Lee Wayne Jim-Bob Kirkland for advancing (or mocking) right-wing positions, is a fine candidate to complain about censorship.

    What makes conservatives so impervious to self-awareness?

  5. Self-awareness? What makes leftists think they are the only intelligent life on earth? Mental masturbation is all they have. Cling on to your delusional world-view.

  6. I must apologize to the Conspiracy. I wrongfully assumed Rev. meant Reverend rather than revolting. I deeply regret this error.

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