The Volokh Conspiracy

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

Volokh Conspiracy

"Call me a fascist again and I'll have you censored all over the world."

Episode 267 of the Cyberlaw Podcast


We kick off Episode 267 with Gus Hurwitz reading the runes to see whether the 50-year Chicago winter for antitrust plaintiffs is finally thawing in Silicon Valley. Gus thinks the predictions of global antitrust warming are overhyped. But he recognizes we're seeing an awful lot of robins on the lawn: The rise of Margrethe Vestager in the EU, the enthusiasm of state AGs for suing Big Tech, and the piling on of Dem presidential candidates and the House of Representatives. Judge Koh's Qualcomm decision is another straw in the wind, triggering criticism from Gus ("an undue extension of Aspen Skiing") and me ("the FTC needs a national security minder when it ventures into privacy and competition law"). But Matthew Heiman thinks I'm on the wrong page when I suggest that Silicon Valley's suppression of conservative speech is the kind of detriment to consumer welfare that the antitrust laws should take into account, even in a Borkian world.

I mock Austrian Greens for suing to censor those who called it a "fascist party" – stopping their mouths not just in Austria but around the world. Yeah, guys, that'll show 'em who the fascists are. Less funny is the European Court of Justice's advocate general, who more or less buys the Greens' argument. And thereby reminds us why we miss Tom Wolfe, who famously said, "The dark night of fascism is always descending in the United States and yet lands only in Europe."

Nate Jones answers the question, "Were the Russians much better at social media than we thought?" All the adjustments to that story, he notes, have increased our assessment of the sophistication in Russia's social media attacks. And in This Week in Host Self-Promotion, I take advantage of Nate's remarks to urge my own solution to the utterly unsolved problem of hack-and-dox attacks by foreign governments on US candidates they don't like: Ban the distribution of data troves stolen from candidates and officials. Nate agrees that First Amendment doctrine here is a lot friendlier to my proposal than most people think, but he cautions that the details get messy fast.

Matthew comments on Baltimore's tragedy of errors in handling its ransomware attack. The New York Times' effort to pin the blame on NSA's EternalBlue, which always looked tendentious and agenda-driven, now has another problem: It's almost certainly dead wrong. EternalBlue doesn't seem to have been used in the ransomware attack. Baltimore's best case now is that its cybersecurity sucked so bad that other, completely unrelated hackers were using EternalBlue to wander through the city's system at the same time as the ransom bandits.

Speaking of cybersecurity, Matthew reminds us of two increasingly common and dangerous hacker tactics: (1) putting the "P" in APT by hanging around the system so long that you've downloaded all the manuals, taken all the online training, and know exactly when and how to scam the system; and (2) finding someone with lousy network security who's connected to a harder target and breaking in through the third party.

Finally, Gary Goldsholle helps us make sense of the litigation between the SEC and Kik, which first launched a cryptotoken that it insisted wasn't a security offering and then crowdfunded a lawsuit to that effect against the SEC. So, finally: good news for lawyers if nothing else, and perhaps for future Initial Popcorn Offerings.

Download the 267th Episode (mp3).

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