The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I've spent much of this year doing a weekly podcast on security, privacy, government and law with a couple of my partners, Michael Vatis and Jason Weinstein. (The RSS feed is here.) I thought readers of this blog might like a taste of the podcast, which has attracted a substantial audience in Washington. This week, in episode 38, our guest is Shaun Waterman, editor of POLITICO Pro Cybersecurity. Shaun is an award-winning journalist who has worked for the BBC and United Press International; and an expert on counterterrorism and cybersecurity.
We begin as usual with the week's NSA news. NSA has released its second privacy transparency report. We've invited Becky Richards, NSA's privacy and civil liberties watchdog, on the program to talk about it, so I'm using this post to lobby her to become a guest soon: Come on in, Becky, it's a new day at the NSA!
Laura Poitras's new film about Snowden gets a quick review. We question the hyped claim that there's a "second leaker" at NSA; most of the leaked information described in the film was already pretty widely known.
Two more post-Snowden pieces of litigation are also in the news. We dig into the Justice Department's botched handling of the notice that must be given to parties on the receiving end of FISA taps and section 702 of FISA. As often turns out to be the case, the Justice Department develops a limp, and all the other agencies have to put stones in their shoes: It looks as though OFAC is going to be dragged into this comedy of errors.
The second piece of litigation began as a humdrum piece of FOIA litigation (though with a bit of Glomar for spice). It has now has produced a much more interesting result: Judge Pauley, ordinarily a good friend to the government, declares that he has lost confidence in the Justice Department's representations about the risks of releasing FISA opinions; he insists on reviewing the FIS court's opinions himself in camera to decide what can be released.
In other national security litigation, we all know that a canary can emit a twitter, but can Twitter emit a canary? The social media giant is going to court to get approval for its "warrant canary," claiming a first amendment right to list the orders it has not (yet) received under national security surveillance laws. Meanwhile, on the opposite coast, the government's authority to issue gag orders in national security letters is argued before the Ninth Circuit, which seems to find the issue at least a little troubling.
Maybe it's a coincidence, but just as Europol is raising the possibility that the internet might be used to kill people, the FDA is trying to do something about it, issuing cybersecurity guidelines for manufacturers. We damn them with faint praise, note that our refrigerators have been trying to kill us slowly for years, and wonder when the National Highway Safety Administration will issue security guidelines for self-driving cars.
The pendulum may be swinging toward privacy in the US but it swings hard the other way in the Southern Hemisphere. First New Zealand gives Snowden a swift kick and now the Australian government is enacting surveillance reforms that increase government authority to conduct national security intercepts.
There's a bit of good news in our update on the right to be forgotten. The European Commission has poured cold water on the European Court of Justice, hinting strongly that the court's enthusiasm for sacrificing free expression is a bad idea. Sad to say, though, the notion seems as communicable as Ebola; even Japan is getting in the act, as a Tokyo court orders Google to take down search links at the request of an individual.
The prize for Dumbest Judicial Opinion of the Month goes (where else?) to the Ninth Circuit, which expressed shock and dismay over the idea that a Navy investigator conducted "surveillance of all the civilian computers in an entire state" in the course of looking for military personnel trading child porn. Turns out that the investigator in question simply looked at images being shared publicly online using a common file-sharing program, Gnutella. And when he had the IP address of someone sharing child porn images he checked to see if the suspect worked for the military. When that turned out not to be the case, he turned the information over to civilian law enforcement, giving the Ninth Circuit a severe case of the vapors and ultimately leading to exclusion of the evidence. Because posse comitatus. You won't want to miss my translation from the Latin.
We unpack the controversy over Ross Ulbricht and how the FBI managed to captcha him. And we congratulate the FCC for a regulatory action near and dear to anyone who's ever paid too much for bad Wi-Fi in a good hotel.
Finally, we remind everyone that the Steptoe Cyberlaw Podcast welcomes feedback, either by email (CyberlawPodcast[at]steptoe.com) or voicemail( +1 202 862 5785). And to prove it, I read a message from Dick Mills, a libertarian blogger who started out tagging me as the Great Satan of statism but ended by admitting that the podcast occasionally changed his mind.