The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Unpacking the Supreme Court's decision in Pepper v. Apple

Episode 264 of the Cyberlaw Podcast


We begin this episode with a quick tour of the 5-4 Apple antitrust decision that pitted two Trump appointees against each other. Matthew Heiman and I consider the differences in judging styles that produced the split—and the role that 25 years of living with Silicon Valley "platform billionaires" may have played in the decision.

Eric Emerson joins us for the first time to talk about the legal fallout from the latest tariff increases on Chinese products. Short version: companies have some short-term tactics to explore (country of origin, drawback, valuation), but large importers/resellers will have to grapple with larger and costlier strategies of supply chain diversification and localization.

Meanwhile, China has not been taking the trade war lying down. In addition to its own tariff increases, it now seems to be enforcing its demanding cybersecurity law more aggressively against foreign firms. I suggest that we may also be seeing retaliation in Chinese courts as well.

In related news, Nick Weaver and I debate the potentially sweeping new Executive Order on Securing the Information and Communications Technology and Services Supply Chain.

Maury Shenk explains the UK Supreme Court ruling that expands the court's authority over the UK's intelligence agencies—despite clear Parliamentary language to the contrary. Bottom line: Bad news for UK intelligence. Hidden good news for the US: Turns out that there is something worse than activist judges interpreting a written constitution – activist judges who can more or less make up the constitution they interpret.

It was a cybersecurity disaster week for some of the biggest names in tech. Nick helps me understand which bugs were worst, Cisco's, Intel's, or Microsoft's. Then we review the equally bad week that the NSO Group and its WhatsApp exploit had.

Cleaning up in a lightning round:  We cover the order requiring the Chinese owner of Grindr to sell by mid-2020. We also cover Canada's approach to social media, which spurs me to offer unwonted praise for France's Macron and his moderation. The EU has a plan for sanctions on cyberattackers; Matthew and I doubt it will get much use. Is too much fuss being made over leak investigators using Web bugs to see if defense counsel at Guantanamo have been leaking; Nick and I disagree, at least a bit.

And the podcast closes with yet another installment in our long-running feature, "This Week in Internet Sex Toy Law." Suffice it to say that the latest case can't be understood without consulting both Orin Kerr and Jerry Seinfeld.

Download the 264th Episode (mp3).

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