The US-China Tech Divide – Where Will it End?

Episode 330 of the Cyberlaw Podcast

|The Volokh Conspiracy |

Our news roundup is dominated by the seemingly endless ways that the US and China can find to quarrel over tech policy.  The Commerce Department's plan to use an executive order to cut TikTok and WeChat out of the US market has now been enjoined. But the $50 Nick Weaver bet me that TikTok could tie its forced sale up until January is still at risk, because the administration has a double-barreled threat to use against that company – not just the executive order but also CFIUS – and the injunction so far only applies to the first. 

I predict that President Xi is likely to veto any deal that appeals to President Trump, just to show the power of his regime to interfere with US plans. That could spell the end of TikTok, at least in the US. Meanwhile, Dave Aitel points out, a similar but even more costly fate could await much of the electronic gaming industry, where WeChat parent TenCent is a dominant player. 

And just to show that the US is willing to do to US tech companies what it's doing to Chinese tech companies, leaks point to the imminent filing of at least one and perhaps two antitrust lawsuits against Google. Maury Shenk leads us through the law and policy options.

The panelists dismiss as PR hype the claim that it was the threat of "material support" liability that caused Zoom to drop support for a PFLP hijacker's speech to American university students. Instead, it looks like garden variety content moderation aimed this time at a favorite of the far left.

Dave explains the good and the bad of the CISA order requiring agencies to quickly patch the critical Netlogon bug

Maury and I debate whether Vladimir Putin is being serious or mocking when he proposes an election hacking ceasefire and a "reset" in the cyber relationship. We conclude that there's some serious mocking in the proposal.

Dave and I also marvel at how Elon Musk, for all his iconoclasm, sure has managed to cozy up to both President Xi and President Trump, make a lot of money in both countries, and take surprisingly little flak for doing so.  The story that spurs this meditation is the news that Tesla is so dependent on Chinese chips for its autonomous driving engine that it's suing the US to end the tariffs on its supply chain

 In quick hits and updates, we note a potentially big story: The Trump administration has slapped new restrictions on exports to Semiconductor Manufacturing International Corporation, China's most advanced maker of computer chips. 

The press that lovingly detailed the allegations in the Steele dossier about President Trump's ties to Moscow hasn't been quite so enthusiastic about covering the dossier's astounding fall from grace. The coup de grace came last week when it was revealed that the main source for the juiciest bits was flagged by the FBI ten years ago as a likely Russian foreign agent; he escaped a FISA order only because he left the country for a while in 2010. 

 The FISA court has issued an opinion on what constitutes a "facility" that can be tapped with a FISA order. It rejected the advice of Cyberlaw Podcast regular David Kris in an opinion that includes all the court's legal reasoning but remains impenetrable because the facts are all classified. Maury and I come up with a plausible explanation of what was at stake.

The Trump administration has proposed section 230 reform legislation similar to the white paper we covered a couple of months ago. The proposal so completely occupies the reasonable middle of the content moderation debate that a Biden administration may not be able to come up with its own reforms without sounding fatally similar to President Trump. 

And in yet more China news, Maury and Dave explore the meaning of Nvidia's bid for ARM, and Maury expresses no surprise at all that WeWork is selling off a big chunk of its Chinese operations 

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

Download the 330th Episode (mp3)

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  1. “The press that lovingly detailed the allegations in the Steele dossier about President Trump’s ties to Moscow hasn’t been quite so enthusiastic about covering the dossier’s astounding fall from grace. ”

    They still believe the Russian Collusion hoax. Just like you can show them a video of someone paying for a ballot and they will claim it’s not real.

    1. I would like someone to explain why, if the dossier was the result of a Democratic campaign to discredit Trump, neither Obama nor Clinton used it. We didn’t hear about it until after the election.

      1. I don’t know, maybe because the idea was to use it to get the FBI to investigate Trump or leak the contents to some friendly journalists to avoid scrutiny, or in the alternate they were so sure they had already won they decided they didn’t need it?

        1. None of that is likely.

          It’s hard to imagine Republicans sitting on damaging information as to Clinton.

        2. Pretty weak reply to captcrisis’ question. If the Clinton campaign wanted to leak Steele’s report they would have done so. How about we try more likely answers:

          (1) The Right’s obsession with Steele is pure diversion. It wasn’t the reason for the original counter-intelligence investigation; the Justice Department’s Inspector General confirmed that. Nor was it important to Mueller’s investigation. His findings – examples being Trump’s campaign head giving regular briefings to a Russian spy or Trump’s fixer holding secret Kremlin negotiations on a massive business deal all during the campaign – were never depended on Steele.

          (2) The dossier was just raw intel. At least a third of it was right; a third was actual events distorted as gossip; a third was completely wrong. I’m guessing that’s not a bad record for raw intelligence.

          (3) Clinton inherited an opposition research firm from a Republican opponent of Trump, They hired Steele, whose report was then shelved unused by Clinton’s campaign. The only people who still think the report important are Trump supporters, and they’re just frantic for excuses.

          1. “How about we try more likely answers:”

            Enough of it is accurate to make people back quietly away from it.

      2. I don’t think it’s actually controversial that the Steele dossier was opposition research. That doesn’t necessarily mean that it was wrong for anyone to pay attention to it, since opposition research is most valuable if it’s actually true, but it’s important context in understanding the document and its motivations.

  2. Huh, so apparently this is where the interesting round ups have been hiding. I honestly wish I had more time today, so I could go look into all these.

  3. “for a PFLP hijacker’s speech”

    It’s interesting to see how far left you have to go to actually get your content moderated. You have to actively had committed violence against innocent people and call for others to do the same to get yourself censored.

    1. I can’t get over SFSU actually hosting her.

  4. It will end in the Communist takeover of the USA while we are all sitting in diversity class, or in a great ball of fire.

      1. Truth for paranoids.

        1. The only thing worse than being paranoid is finding out you’re not.

    1. At least the CCP does not seem interested in diversity.

  5. Why is an “often libertarian” blog hosted by an ostensibly libertarian website publishing this authoritarian right-wing drivel?

    Other than the risible faux libertarianism, I mean.

    1. In other words, Stewart Baker and Nick agree on basically everything despite being on completely opposite political spectrums, they just frame it differently.

      That essentually describes this podcast. Its actually kind of refreshing, because it shows they do have political positions but are informed by real security experience and aren’t simply ideologues. Really refreshing.

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