The TikTok Dumpster Fire 

It's episode 329 of the Cyberlaw Podcast

|The Volokh Conspiracy |

John Yoo, Mark MacCarthy, and I kick off episode 329 by jumping with both feet into the cyberspace equivalent of a dumpster fire. There is probably a pretty good national security case for banning TikTok. In fact, China made the case a lot better than the Trump administration when it declared, "You know that algorithm that tells all your kids what to watch all day? That's actually a secret national security asset of the People's Republic of China." But the administration's process for addressing the national security issue was unable to keep up with President Trump's eagerness to announce some kind of deal. The haphazard and easily stereotyped process probably also contributed to the casual decision of a magistrate in San Francisco to brush aside US national security interests in the WeChat case, postponing the order on dubious first amendment grounds that John Yoo rightly takes to task.

Megan Stifel tells us that the bill for decoupling from China is going to be high – up to $50 billion just for chips if you listen to the Semiconductor Industry Association.

Speaking of big industry embracing big government, Pete Jeydel explains IBM's slightly jarring suggestion that the government should slap export controls on a kind of face recognition technology that Big Blue doesn't sell any more. Actually, when you put it like that, it kind of explains itself.

Megan tells us that the House has passed a bill on the security of IOT devices. The bill, which has also moved pretty far in the Senate, is modest, setting standards only for what the federal government will buy, but Megan has hopes that it will prove to be the start of a broader movement to address IOT security.

I reprise the latest demonstrations that Silicon Valley hates conservatives, and how far it will go to suppress their speech.  My favorite is Facebook deciding that a political ad that criticizes transwomen competing in women's sports must be taken down because it "lacks context". Unlike every other political ad since the beginning of time, apparently. Although Twitter's double standard for a "manipulated media" label is pretty rich too: Turns out that in the Twitterverse, splicing Trump's remarks to make him say what the Biden camp is sure he meant is perfectly fair , but splicing a Biden interview so he says what the Trump camp is sure he meant is Evil Incarnate.

Finally, Megan rounds out the week with a host of hacker news. The North Koreans are in bed with Russian cybercrime gangs.  (I can't help wondering which one wakes up with fleas.) The Iranians are stealing 2FA codes and some of them have now been indicted by the US Justice Department, though not apparently for the 2FA exploit.  A long-running Chinese cybergang has also been indicted.  That won't actually stop them, but it will be hard on their Malaysian accomplices, who are already in jail.

Our interview this week is with Michael Brown, a remarkably influential defense technologist. He's been CEO of Symantec, co-wrote the report that led to the passage of FIRRMA and the transformation of CFIUS, and he now runs the Defense Innovation Unit in Silicon Valley. He explains what DIU does and some of the technological successes it has already made possible.

Oh, and we have new theme music, courtesy of Ken Weissman of Weissman Sound Design.  Hope you like it!

Download the 329th Episode (mp3)

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  1. Chiming in to note that Tik Tok is such a grave national security threat that it’s been allowed to continue operating for the past two months and still has at least a month to go.

    1. Something can, in fact, be a threat to national security in the long run but not require immediate action, but rather a measured response while the options are considered. This is fairly routine in national security circles.

      1. Laughing at “measured response.”

        And Tik Tok is alleged to be a more immediate threat.

        1. They banned the use of Tik Tok on government owned devices months ago, which probably should have been the end of the US government response.

  2. So rather than ban TikTok, we should just arrest anyone using it as a traitor.

    1. Or simply label them as one. Perhaps deny them Federal aid for college.

    2. And everyone must submit their phone to the phone police so we can check.

  3. Wow. Imagine John Yoo not thinking individual rights are important. What a shocking development.

    I do not see why people continue to engage with him as though he is a normal commentator and not some morally depraved freak who used specious legal reasoning to justify pure sadism in the name of national security.

  4. What I don’t understand is the reversal of the laissez faire approach to business that “conservatives” have long advocated the government take.

    Here, we have the president forcing a company to sell and deciding which company gets to buy that company. And conveniently, the winning company just so happens to be led by one of the president’s supporters. Should the government or the market pick winners and losers?

    BTW, my prediction is that Oracle, if they actually take over management as opposed to simply pocketing the profits, will drive Tik Tok into the ground. I say this because I’ve used Oracle software extensively over the past decades and that company has no earthly idea how to write a user interface.

    1. Generally, I’m a strong supporter of the laissez faire approach to business and markets.

      However, you have to realize that “capitalism” and “markets” are social constructs that exist within the framework of a government system that enforces contract and property rights, polices crime, supports infrastructure, organizes a common defense, and so on.

      Thus, the construct of the “market” is sharply limited and confined by the borders of nations, states, and cities, and the various differences among government frameworks that reflect cultural differences among those locales. That’s in addition to supposed national security concerns. Many highly influential people believe that such differences should be eradicated in favor of a more globalized common market and global government, but to me that is an anathema to basic liberty and self-government. Global markets and trade are of course very beneficial, but such trade is inevitably managed in some way to the extent that you don’t erect a global framework, i.e. a one-world government.

      To some extent we have followed a program in recent decades that is tantamount to national suicide: heavily tax and regulate domestic industry and labor such that they are disadvantaged and shut down, and then turn around and receive output from other countries that have zero environmental or labor protections, all tax-free with no offsetting duties to “leave the competition between foreign and domestic industry . . . as nearly as possible upon the same footing” in the words of Adam Smith.

      I’m not an anarcho-libertarian or whatever, so I do think the government framework is necessary, as the Hobbesian natural state is just force and violence rather than “markets.” I’m open to new ideas though. But even if one disagrees with tax levels, welfare state entitlements, minimum wages and other government policies, this does not prevent one from forming further policy that takes those things into account based on the premise that you’re not politically able to change certain things.

      As far as the TikTok situation I don’t have any strong opinion, but I don’t think the President is “deciding which company gets to buy.” Anyone could have stepped up. MSFT was in the discussion but it appears they were lukewarm from the start. What the President is doing is deciding that a company presided over by the Chinese Communist Party doesn’t get to have eyes and ears on, and influence over, 80 million active US users, without giving up some ownership and control to US interests. Whether some of the upper echelons of US corporate interests are any more interested in or effective at protecting American interests than the CCP is up for debate though, unfortunately.

      1. What do you think about the President’s insistence that $5B of the private sale goes towards a public “fund for education, so we can educate people as to [the] real history of our country — the real history, not the fake history”?

        1. The Department of Education should be abolished, of course. But if the federal government is going to be meddling in education, it’s far better that they further civics, patriotism, and history rather than critical theory nonsense. I heard that the $5B was just some estimated taxes that Trump spun as a “cut” but I don’t know if that’s true. Obviously, politicians shouldn’t be hustlers out to get their “cut”, and just as obviously, they nonetheless are, with our D.C. politicians always somehow growing richer beyond their salaries, only usually they are hustling for themselves at the expense of the public interest rather than hustling for the benefit of the public coffers.

    2. Also: it’s pretty hilarious to see the people complaining that Facebook, Google, etc. are monopolies that want to suppress conservative speech turn around and swat down the strongest emergent competitor in the social media space.

    3. What I don’t understand is the reversal of the laissez faire approach to business that “conservatives” have long advocated the government take.

      Oh, you do understand, as evidenced by the scare quotes you employed: these people aren’t conservatives.

  5. Stewart Baker thinks it is unforgivable when the EU cites GDPR to prevent the US government from getting data about Europeans from US-based companies. Clearly what they should have done instead was to ban Facebook, Google, Linkedin outright and force them to sell to European owners.

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