The best idea yet for derailing Judge Kavanaugh's nomination

Episode 228 of the Cyberlaw Podcast

Our guest for the Cyberlaw podcast interview is Noah Phillips, recently appointed FTC Commissioner and former colleague of Stewart Baker at Steptoe. Noah fields questions about the European Union, privacy, and LabMD, about whether Silicon Valley suppression of conservative speech should be a competition law issue, about how foreign governments' abuse of merger approvals can be disciplined, and much more.

The imminent adoption of the must-pass National Defense Authorization Act yields a deep dive on the bill. Most important for business lawyers, the bill will include a transformative rewrite of CFIUS's investment-review procedures and policies.

Gus Hurwitz lays out many of the cyber issues addressed by the NDAA, while Dr. Megan Reiss explains the act's creation of a "Solarium" commission designed to force serious strategic thinking about cybersecurity and cyberweapons. I offer my contribution to that debate – an effort to think the unthinkable and come up with tougher options for responding to serious cyberattacks. Since we're trying to think the unthinkable, I argue, we're really rooting for the itheberg, so I've dubbed it the Itheberg Project. I do, however, make an unusual double-barreled offer to those who might want to participate in the Itheberg Project.

All that pales next to a surprisingly lively discussion of circuits splitting over insurance coverage of cyber-related fraud losses. Gus and Matthew Heiman predict that the Supreme Court (or an insurance contract rewrite) will be necessary to resolve the issue – and both of them think the issue is well worth the Court's time. No one tell Judge Kavanaugh or he may just decide to stay on the DC Circuit!

In a "lightning" round that the FTC may soon investigate for deceptive labeling:

• Gus mocks the ACLU's rigged test of Amazon's face recognition software.
• China screws Qualcomm despite the US deal to save ZTE, letting the NXP acquisition die of neglect.
• The New York Public Service Commission revokes its 2016 conditional approval of the Charter-Time Warner merger.
• And India chooses favorable ground for a fight with WhatsApp over end-to-end encryption.

Download the 228th Episode (mp3).

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Comments

[Kazinski]

There is a workable constitutional solution to "requiring" fair play by Twitter, Facebook, Google etc. All of their business models are dependent on broad exemptions granted to the company's by the DMCA and the Stored communications decency act.

Congress should rewrite the acts so the liability exemptions are based on good faith implementation of fairness guidelines for users of the platforms, with arbitration, and access to the courts to avoid having the arbitrators captured by the industry.

When congress makes censorship bad business then it will stop. And they can do that by inducing the offenders to voluntarily submitting their censorship policies and decisions to 3rd party review

[WJack]

Great, but only for those who get to pick the 3rd party reviewers.

[Rev. Arthur L. Kirkland]

Congress should rewrite the acts so the liability exemptions are based on good faith implementation of fairness guidelines for users of the platforms, with arbitration, and access to the courts to avoid having the arbitrators captured by the industry.

Right-wingers advocating a 'fairness doctrine,' at an ostensibly libertarian -- or is it 'libertarianish' -- forum?

No wonder gullible people fall for 'end times' nonsense.

I would volunteer to be the fairness administrator responsible for Limbaugh and Volokh.

[WJack]

Wow, you got the point! I volunteer for the propaganda pumps, i.e., the Washington Post, N.Y. Times, and NPR et al. Together we can make this work.

[Rev. Arthur L. Kirkland]

To what do you trace your resentment toward your betters, including first-rank journalists?

[WJack]

Like you (unlike the "journalists" who are mostly victims of progressive educators) - to my superior intelligence, elite education, brilliant insight, and vast experience. If we are to succeed we must respect each other's views. I am pleased that you quickly perceived 3rd party review to be yet another silly progressive utopian proposal.

[Rev. Arthur L. Kirkland]

You sound like the kind of conservative yahoo who whimpers and carps about our strongest educational institutions -- those operated in and by our liberal-libertarian mainstream, such as Harvard, Berkeley, Reed, Yale, Michigan, and Columbia -- while inexplicably favoring the hundreds of conservative-controlled, censorship-shackled, nonsense-teaching, science-rejecting, fourth-tier, right-wing goober factories from Liberty to HIllsdale, Regent to Grove City, Biola to Franciscan, and Wheaton to Patrick Henry.

Carry on, clingers.

[WJack]

Poor Arthur, you might want to take a look at what you post. If you are in fact a product of one of those schools you think is is among our "strongest" then this once great country is probably in deeper trouble than many have supposed.

By the way - liberals and libertarians like cats and dogs may have some common features, but most people can tell the difference at a glance.

Americans will continue to cling, or at least we should hope so.

[Kazinski]

I said arbitrators, professional arbitrators, not volunteers with an axe to grind.

It's imperfect, like everything else but it's better than things like Twitter's "No, we did not shadow ban you, but no one who follows you will see your posts."

[perlchpr]

Your "screws Qualcomm" link is broken.

[Naaman Brown]

If you delete everything after the first .html, it works.

Fixed "screws Qualcomm" link

[Rocking Chair Lawyer]

Have you seen the update from arstechnica on the amazon/aclu/rekognition issue? It was published around or after when the podcast was recorded: Ars article

Amazon now recommends that 99% should be the default threshold for law enforcement, but they made this change sometime after Dec 2017. It's good that they've made this change, but I don't they've been direct about when this change happened or why.

Their old Rekognition docs vs their updated ones:

Dec 2017

Current

Their June 2017 blog post linked by ars has the default set to 85% in the code snippet they provide."Using Amazon Rekognition to Identify Persons of Interest for Law Enforcement"

faceMatchThreshold = 0.85;

Can't find anything that recommends a higher % that pre-dates the ACLU's investigation.

[Rocking Chair Lawyer]

I suck at links too. Is there a guide?

URL shortened links:

Dec 2017: https://t.co/0G4A6CnuLP

Current: https://t.co/b4eA5E7iXm