The latest episode of The Cyberlaw Podcast features guest host Brian Fleming, while Stewart Baker is participating in the Canadian Ski Marathon. Brian is joined for the news roundup by Jane Bambauer, Gus Hurwitz, and Nate Jones.

They begin by discussing the latest U.S. government efforts to protect sensitive personal data, including the FTC's lawsuit against data broker Kochava and the forthcoming executive order restricting certain bulk sensitive data flows to China and other countries of concern.

Nate and Brian then discuss whether Congress has a realistic path to end the Section 702 reauthorization standoff before the April expiration and debate what to make of a recent multilateral meeting in London to discuss curbing spyware abuses.

Gus and Jane then talk about the big news for cord-cutting sports fans, as well as Amazon's ad data deal with Reach, in an effort to understand some broader difficulties facing internet-based ad and subscription revenue models.

Nate considers the implications of Ukraine's "defend forward" cyber strategy in its war against Russia. Jane next tackles a trio of stories detailing challenges, of the policy and economic varieties, facing Meta on the content moderation front, as well as an emerging problem policing sexual assaults in the Metaverse.

Bringing it back to data, Gus wraps the news roundup by highlighting a novel FTC case brought against Blackbaud stemming from its data retention practices.

In this week's quick hits, Gus and Jane reflect on the FCC's ban on AI-generated voice cloning in robocalls, Nate touches on an alert from CISA and FBI on the threat presented by Chinese hackers to critical infrastructure, Gus comments on South Korea's pause on implementation of its anti-monopoly platform act and the apparent futility of nudges (with respect to climate change attitudes or otherwise), and finally Brian closes with a few words on possible broad U.S. import restrictions on Chinese EVs and how even the abundance of mediocre AI-related ads couldn't ruin Taylor Swift's Super Bowl.

Download 491st Episode (mp3)

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@gmail.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets

[This post is co-authored with Professor Seth Barrett Tillman.]

On Monday, February 12, 2024, Professor Mark Graber published a post on Balkinization about the February 8, 2024 oral argument in Trump v. Anderson. He argued that the questions posed by Justice Jackson had their foundation in white supremacy. We refrain from characterizing his argument further. Instead, we report these excerpts:

Instead, justices on both the left and right made deeply problematic historical assertions unaware of their foundations in the white supremacist commitments of the history profession for most of the twentieth century. . . . 

The questions from many Supreme Court justices in oral argument evinced a good deal of sympathy for Dunning School dogma, minus the overt racism. . . . 

Jackson came too dangerously close to articulating Dunning School commitments when she suggested that Senator Reverdy Johnson of Maryland correctly thought Section Three exempted the presidency, even though Johnson immediately recanted after being corrected by a Republican. Dunning School historians thought Johnson the greatest lawyer in the Senate. He had, after all, convinced the Supreme Court as the victorious lawyer in Dred Scott that the Constitution forbade bans on slavery in American territories, prohibited freed slaves from becoming citizens of the United States and regarded African-Americans as having no rights white American citizens were obligated to respect. Johnson was one of many Democrats who continued to maintain after the passage of the Thirteenth and Fourteenth Amendments that the United States was committed to a white man's government. These sentiments, the Dunning School thought, made Johnson a brilliant lawyer. Contemporary historians disagree. Jackson when writing or signing opinions might consider finding a different authority on the meaning of the post-Civil War Amendments.

We are confident that Justice Jackson—along with each of her eight Supreme Court colleagues—is fully capable of understanding the "foundations" of "white supremacy," and Jackson can decide for herself which authorities are persuasive.

We, Blackman and Tillman, are both realists. We have real doubts whether our amicus brief will convince any single Justice to vote differently than that Justice would otherwise have voted. Likewise, we doubt our publications, taken separately or collectively, will likely influence any one or more Justices to vote differently than they would otherwise have voted. By contrast, as to Graber's Balkinization post, we think it much more likely to move Justice Jackson into the "Trump" camp and towards the "President is not an officer 'of' or 'under' the United States" position than anything we have written or are likely to write in the future.

On days when the Supreme Court will issue an opinion, the calendar on the site announces, "The Court may announce opinions, which are posted on the homepage after announcement from the Bench."

I checked the Court's calendar this morning, and there is a different notation for Friday, 2/16:

The Court will convene for a public non-argument session in the Courtroom at 10 a.m.
Seating for the non-argument session will be provided to the public, members of the Supreme Court Bar, and press. The Supreme Court Building will otherwise be closed to the public.

This probably means an opinion handdown will be posted at some point soon.

What will it be? The Section 3 case? As a rule of thumb, the earlier the Section 3 case comes, the more likely it is unanimous, or something close to it.

On February 7, the Supreme Court of Hawai'i decided State v. Wilson, upholding state criminal laws confining handguns and ammunition to the "possessor's place of business, residence, or sojourn."  A separate provision provides for permits to carry (which historically no one got), but the defendant had not applied for a permit and thus had no standing to challenge that provision.

Article I, § 17 of the Hawai'i Constitution has the same language as the federal Second Amendment, just deleting the first and last comma.  Wilson held that § 17 "supports a collective, militia meaning," and thus "in Hawai'i there is no state constitutional right to carry a firearm in public."

Citing Justice Stevens' dissent in Heller and Justice Breyer's dissent in Bruen, Wilson claims that the U.S. Supreme Court "distorts and cherry-picks historical evidence. It shrinks, alters, and discards historical facts that don't fit."  The Court's failings are not limited to the issue at hand – "the Dobbs majority engaged in historical fiction" as well.  Wilson avers: "The United States Supreme Court disables the states' responsibility to protect public safety, reduce gun violence, and safeguard peaceful public movement."

Wilson fails to analyze the actual precedents when it asserts: "Until Heller, the Supreme Court had never ruled that the Second Amendment afforded an individual right to keep and bear arms."  Well, the Court assumed that the right is individual in Scott v. Sandford  (1857), U.S. v. Cruikshank (1876), Presser v. Illinois (1886), Robertson v. Baldwin (1897), U.S. v. Miller (1939), Johnson v. Eisentrager (1950), and U.S. v. Verdugo-Urquidez (1990).

According to Wilson, both § 17 and the Second Amendment "use military-tinged language – 'well regulated militia' and 'bear arms' – to limit the use of deadly weapons to a military purpose."  However, "there are no words that mention a personal right to possess lethal weapons in public places for possible self-defense."  But this ignores that the guarantee has two separate clauses – one declaring the necessity of the militia, the other declaring the right of the people to bear arms.  Wilson implies that the militia are the only "people," as if the guarantee refers to "the right of the militia to bear arms."

Read More

It's kind of horrifying that the loudest voices bemoaning Palestinian civilian suffering in Gaza will harshly criticize everyone and anyone–Israel, the US, the EU, the UN Security Council, American Jews, you name it–except for Hamas (and its allies like Iran), and the one thing they won't do is suggest Hamas surrender, even though that would immediately end the war, and also end Gazans being ruled by an oppressive medieval theocracy that steals aid money to build weapons and villas for its leaders.

In short, no matter how much they purport to care for Palestinians, their biggest priority is that Israel not emerge victorious over Hamas. I won't go so far as to claim that they don't care about the Palestinians. I will claim, strongly, that they hate Israel much more.

A perfectly good (but hardly the only) example is Karen Attiah, who has a sufficiently influential position as world opinion editor at the Washington Post that someone like her deciding that hey, maybe Hamas should just surrender and release the hostages could help move the needle, given that Hamas is counting on world opinion to stop Israel's offensive and keep it in power. Even if Hamas is beyond world opinion, its patrons and allies in Turkey, Qatar, and even Iran are not.

And the folks I'm referring to won't even suggest that they want Hamas to surrender for rhetorical purposes. Like, "Of course my preference would be for Hamas to surrender and release the hostages, but if that can't happen, and it looks like it can't, to end the civilian suffering Israel should cease fire." Nope, they won't even suggest that they would *prefer* Hamas to surrender. How twisted does your mind have to be to think Hamas is the relative good guy here? And that you won't even pretend you think otherwise just to help persuade, because you can't bring yourself to even do that?

Some of you may have seen the article by David Segal in the Sunday NY Times several weeks ago [available here] about a rather sordid copyright fracas in which I have been embroiled over the past few months. [That's me, seated on the right in the photo].

It's a pretty wild story. If you don't feel like reading the whole NYT article, here's a brief summary of how it unfolded:

Off and on, for 30 years or so, I've been in a duo ("Bad Dog") with a friend, Craig Blackwell, here in Washington DC: Two acoustic guitars, two vocals, original songs. We take the music we make very seriously, but we are not professional musicians; we both had and have careers outside of music. We weren't and aren't in it for the money, but just for the pleasure of making music and the satisfaction one gets from creating something worthwhile and interesting and, perhaps, even beautiful.

In early 2023, we recorded an album containing nine new songs ("The Jukebox of Regret"—you can listen to it here) at a local recording studio (Mixcave Studios). After the recordings were mixed and mastered, we posted them (as we had posted other recordings that we had made over the years) on the "Bad Dog" page at Soundcloud.com, a music-sharing website.

Several weeks later, a friend told us that she had input a recording of one of our songs (entitled "Preston") into the Shazam app, and that Shazam identified the song right away—as something called "Drunk the Wine" by someone called Vinay Jonge. It pointed her to the YouTube page where the recording was available to be streamed.

Well! The YouTube recording was, it was clear upon listening to it, an exact duplicate of the recording we had posted on SoundCloud. A quick Google search on "Vinay Jonge—Drunk the Wine" turned up his recording—i.e., our recording of "Preston"—at all the other major music streaming services (Spotify, Amazon Music, Apple Music, allmusic.com, etc.). [Curiously, Mr. Jonge didn't seem to have any other songs posted anywhere on the Internet. A one-hit wonder!].

We began the process of sending "takedown notices" to each of the streaming platforms, informing them that they, and Mr. Jonge, were infringing our copyright.

And then we learned that it wasn't only "Vinay Jonge," and it wasn't only one song;  all of the songs on the album had been pirated and were posted on all of the big streaming platforms. Each one had a new song title and a new artist name:

• our "The Misfit" had become "Outlier" by Arend Grootveld;
• our "Verona" had become "I Told You" by Ferdinand Eising;
• our "A Drink Before I Go" had become "Drink When I'm Gone" by Amier Erkens;
• our "Pop Song" had become "With Me Tonight" by Kyro Schellen;
• etc.

You might ask: How did we figure this out? Good question! Searching for "Bad Dog—Preston" or "Verona" or "The Misfit" at Google or YouTube or Spotify or Apple Music etc. wouldn't have turned anything up, because the song names had all been changed, and each song was associated with a different "artist." Without knowing how our songs had been re-titled, or the names of those who were taking credit for our work, the infringements were completely invisible to us, out there in the great Internet ocean.

So how did we track them down? The answer is: We found these other infringing files after we sent the nine song files to Disc Makers, a commercial CD printing operation, to have them print up some CDs for us to hand out at our upcoming album release show. Disc Makers apparently uses some sort of file-matching software/system to check at least some of the streaming platforms for duplicate files; they found the infringing files, and they sent us a polite note with a list of everything they had found, and informing us that they had put our CD project on "Hold," because the files we sent them "contain previously copyrighted material."

Disc Makers, in other words, thought—not unreasonably, I suppose, given the evidence it had—that we were the infringers! Until we were able to persuade them that it was the other way around (which we were able to do by demonstrating that the upload date of the files we sent to SoundCloud pre-dated the upload dates for the infringing files) they wouldn't make the CDs for us.

One final plot twist. Now that we had the "artist" names and the new song titles, we could locate infringing files at the streaming platforms, and we started sending out more takedown notices. In response to one that we sent to Apple Music, we got a note back saying, in effect:  "The songs you have identified were provided to us by a music distributor. If you have a copyright claim, please direct it to the distributor."  And they identified the distributor: Warner Music Group.

Well! That was a surprise! Warner, of course, is one of the world's largest distributor of digital music, with thousands of musicians under contract, and a pipeline that extends to all of the big streaming platforms. Apparently, Warner had some sort of relationship with Vinay Jonge, Amier Erkens, Arend Grootveld, and the rest of them under which Warner distributed "their" music to the streaming platforms (and, I assume, took a small percentage of whatever streaming income those tracks generated). Also apparent: whatever system Warner uses to insure that the artists they represent own the copyrights in the material that they deliver to Warner did not function adequately in this case. [The folks at Warner declined my request to comment on this article]

Read More

What do James Comey, Robert Mueller, and Robert Hur have in common? They each refused to seek criminal charges against a prominent politician, but in doing so, revealed damaging information about that politician. FBI Director Comey's remarks about Hillary Clinton's email server may have cost her the 2016 election. Special Counsel Robert Mueller's report led to an impeachment inquiry for President Trump. And Special Counsel Robert Hur's report about President Biden's mental state very well may undermine his election chances.

Again, Clinton, Trump, and Biden were not prosecuted. Yet in each case, federal law enforcement officials explained to the public why no charges would be brought. As much as I favor transparency, I think publicizing the decision not to indict is a mistake. Nothing good comes from releasing a declination report for a person who will not be charged. Prosecutors speak through indictments: either bill, or no bill. Anything short of an indictment should not be disclosed to the public.

Which brings me to the title of this post. The current special regulations provided that the  special counsel, at the "conclusion" of his work, "shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel." 28 CFR § 600.8(c). This requirement is salutary. The Attorney General should know why the special counsel is, or is not seeking an indictment.

The regulations, however, do more than require the special counsel to give a confidential report to the Attorney General. The regulations create an expectation that the Attorney General will publicize the report:

The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions. 28 CFR § 600.9(c).

This provision is a mistake. If the special counsel recommends an indictment, and the official is indicted, let the indictment speak for itself. If the special counsel declines to recommend an indictment, simply decline to indict, and let everyone move on with their lives. Again, there is no actual mandate to release the report. But this provision creates an expectation that it will be released.

I can see several benefits if this provision is rescinded. First, the special counsel would not feel like he is writing for the history books. A short memo that explains his declination decision would suffice. Such a brief report could also expedite the declination decision–which is in everyone's interest. Second, the Attorney General will no longer be forced to consider whether to invoke executive privilege and redact portions of the report. Indeed, since nothing would be redacted, the special counsel could be even more forthright in his recommendations.  Remember, there was lengthy litigation over redactions made by Attorney General Barr. And perhaps Attorney General Garland should have whipped out his redaction marker for the Hur report. Third, if the report is never released, the Attorney General would not be put in the tough spot of trying to summarize a report he disagrees with. Remember how much flak Barr got for his summary of the Mueller report. Nothing good comes from making this report public.

I remain persuaded by Justice Scalia's dissent in Morrison v. Olson as a policy matter: it is impossible to separate criminal prosecution from political accountability. So don't pretend otherwise. Indeed, Attorney General Merrick Garland is under scrutiny from the White House for not bringing charges against Trump sooner, but instead caving to political pressure, and appointing Jack Smith. Had Garland proceeded on his own, Trump could have already been brought to a verdict. But here we are, with the Supreme Court on deck.

Like the expired independent counsel statute, the special counsel regulations have failed (sorry Neal). I hope there is a bipartisan consensus on this issue now. If it were up to me, the entire suite of regulations should be rescinded in the next administration. And they should be rescinded before any new special counsels are appointed. I'm not sure who would even have standing to challenge such a rescision. (A current special counsel might have standing.) (I wrote about the repeal of the regulations in 2018.) At a minimum, rescinding 28 CFR § 600.9(c) should be a priority.

Tomorrow (Monday), Trump's other lawyers will have file an emergency stay with the Supreme Court in the criminal immunity case. When I first read the D.C. Circuit's opinion, my initial inclination was that the Supreme Court would simply deny a stay, and let the lower court proceedings continue. Given that posture, a trial could be held in the next few months, likely with a verdict before the election.

However, after cogitating on the Section 3 case a bit more, I have some new thoughts. During oral argument in Trump v. Anderson, the Chief Justice did not seem interested in cleanly resolving the insurrection issue. Counsel for both sides urged the Court to definitively resolve the case. Jason Murray stated the issue plainly:

If this Court concludes that Colorado did not have the authority to exclude President Trump from the presidential ballot on procedural grounds, I think this case would be done, but I think it could come back with a vengeance because ultimately members of Congress may have to make the determination after a presidential election if President Trump wins about whether or not he is disqualified from office and whether to count votes cast for him under the Electoral Count Reform Act. So President Trump himself urges this Court in the first few pages of his brief to resolve the issues on the merits, and we think that the Court should do so as well.

Indeed, Baude and Paulsen have pivoted, and suggest that Congress may indeed be a "backstop" on January 6, 2025. Was the Court moved by these concerns about "vengeance"? Based on argument, probably not, though things can always change when the opinion has to write.

Still, if the Court does "punt," it would be based on a common calculus in Roberts Courts decision: if we don't have to decide this issue now, we may never have to decide the case. If Biden wins the election, who cares if Trump is an insurrectionist? If Trump wins the election with a majority in one or both houses, the joint session of Congress cannot disqualify him on January 6, 2025. And if Trump is inaugurated, the Court can defer to Congress's decision to certify Trump's election as evidence that he is not disqualified. Maybe Section 3 becomes a political question. Or maybe the Chief will save Trump by holding that the President is actually a tax. Another Roberts blue plate special! Details can be filled in later. The "vengeance" risk only arises if Trump wins the election, and there are sufficient Democratic majorities in both houses willing to disqualify him. (Jamie Raskin is not the median voter.) I'm sure the Chief has run through all of these possibilities.

Now, let's consider the possibilities with the criminal immunity case. If the Court takes no action, and denies review, a criminal trial will be held before the election, followed by an emergency appeal to the Supreme Court in September or October, with a decision on the eve of the election. By that point, a substantial number of ballots will already have been counted due to early voting. Who wants to deal with an emergency appeal so close to the election? If the Court grants a stay now, and adds the case to the rocket docket with argument in May, it will have to rush through a complicated decision on executive immunity after all of the delegates have been awarded. Trump's nomination would be a lock at that point. (FWIW,  May oral arguments are very rare, but Brett Kavanaugh argued a case in June.)

There is another option. As I understand the posture, the lower courts rejected a claim for absolute immunity. There was no finding on whether as applied in particular contexts Trump may have had immunity. What if the Supreme Court remands for further fact finding to determine if, in the particular instances of January 6, Trump may have some sort of as applied immunity. I don't know if this remand is even possible, or if the rules even permit it, but it sounds like the sort of blue plate special the Chief could whip up.

What happens with this possibility? First, the Court would say nothing about presidential immunity now–whether absolute or as applied. Second, the Court would not let a three-judge panel, absent en banc review, have the final say on this complex issue. Third, it would force the trial court to spend several months going through elaborate procedures, and developing a record that may be useful for future appellate review. Fourth, and most importantly, this approach would kick the issue to the election. If Trump wins the election, his first act will be to order the AG to dismiss the prosecution, and he may even pardon himself. If Trump loses the election, the case can go to trial in 2025, and the Supreme Court can eventually hear the issue on direct appeal. Again, if Trump loses, the stakes will be much lower, since Trump is no longer a viable political candidate. The Court can resolve the case on its own terms, with much less pressure.

So to summarize, if the Court takes the path hinted at in Trump v. Anderson, with a remand now, the Justices may never have to decide the issue of criminal immunity, or alternatively, would have to decide the issue about citizen Trump, not candidate Trump.

Of course, I do not favor these sorts of dilatory tactics. I would much rather the Supreme Court cleanly resolve the Section 3 issue. (And I hope that the Chief Justice and Justice Kagan won't object to Justice Jackson writing about "officer stuff" with Justice Gorsuch; a short concurrence would take the wind out of the sails of a 1/6/25 disqualification effort.) And I would much rather the Supreme Court settle the bounds of presidential criminal immunity rather than a three-judge panel of the D.C. Circuit that truncated any possible en banc review. But I seldom get what I want.

We'll see what happens.

During oral argument in Trump v. Anderson, counsel for the voters was forced to abandon the claim that the Speaker and the Senate President Pro Tempore were "officers of the United States" whose appointments were not provided for in Article II, Section 2. Patrick Murray referred to those presiding officers as "an exception to the general rule." In doing so, Murray surrendered two of the four positions that Justice Scalia listed in his letter to Tillman.

What about the other two positions in the Scalia letter: are the President and Vice President "officers of the United States" whose appointments are not provided for in Article II, Section 2?  Through the Sinecure Clause, Tillman and I have demonstrated that the answer to this question is no. In our view, the phrase "not herein otherwise provided for" is a null set. There are no such offices. The Constitution is telling us that there are not "Officers of the United States" who are provided for elsewhere. All of the "Officers of the United States" are provided for in Article II, Section 2.

During the Originalism Works-in-Progress Conference, I was asked why the Framers would include this phrase if it referred to zero positions. One possible answer can be found in the drafting history of the Appointments Clause. At earlier junctures during the convention, the legislature had the power to appoint different positions, including judges, ambassadors, and the treasurer. These appointments were not provided for in (what became) the Appointments Clause. But over time, the Convention removed the legislature's power to appoint these positions. The power to appoint those positions was given to the President. As a result, the phrase "not herein otherwise provided for" indicated that "Officers of the United States" were only appointed pursuant to the procedures spelled out in Article II, Section II. And to reinforce this point, the phrase, "and which shall be established by law" was added to the Appointments Clause, making clear that the "Officers of the United States" had to be created by statute, and not by the Constitution. There is nothing I've seen in the drafting history to suggest that the phrase "not herein otherwise provided for" refers to (as Scalia suggested), the President, the Vice President, the Speaker, and the Senate President Pro Tempore.

Tillman and I discuss this history in depth in Part III of our series (pp. 387-390):

Read More