The Volokh Conspiracy

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Trump Derangement and the Trading with the Enemy Act

Episode 275 of the Cyberlaw Podcast


And we're back with a podcast episode that picks the August events that will mean the most for technology law and policy this year. Dave Aitel opens, telling us that Cyber Command gave the world a hint of what "defending forward" looks like with an operation that may have knocked the Iranian Revolutionary Guard's tanker attacks for a long-lasting loop.

Next, David Kris lifts the curtain on China's approach to information warfare, driven by the Hong Kong protests and its regional hegemonic ambitions. Speaking of China, it looks as though a determination to bring the Uighur population to heel ledChina to create a website devoted to compromising iPhones, in the process disclosing a few zero-days and compromising anybody who viewed the site. Dave Aitel teases out some of the less obvious lessons. He criticizes Apple for not giving security-minded users the tools they need to protect themselves. But he resists my suggestion that the FBI, which first flagged the site for Google's Project Zero, went to Google because Apple wasn't responsive to the Bureau's concerns. (Alternative explanation: If you embarrass the FBI in court, don't be surprised if they embarrass you a few years later.)

One lesson of these fights is that the US-China trade war is a lot more than a trade war. It's a grinding, continental decoupling drift that the trade war is driving but which the Trump Administration probably couldn't stop now if the president wanted to. We puzzle over exactly what the president does want. Then I shift to mocking CNN for its Trump derangement and inaccuracy (yes, it's an easy target, but give me a break, I've been away for a month): Press claims that the president couldn't "hereby order" US companies to speed their decoupling from China are just wrong as a matter of law. In fact, the relevant law, still in effect with modest changes, used to be called the Trading with the Enemy Act. And it's been used to "hereby order" the decoupling of the US economy from countries like Nazi Germany, among others. Whether such an order in the case of China would be "lawful but stupid" is another question.

August saw more flareups over Silicon Valley censorship of conservative speech. Facebook has hired former Sen. Kyl to investigate claims of anticonservative bias in its content moderation, and the White House is reportedly drafting an executive order to tackle Silicon Valley bias. I ask whether either the FTC or FCC can really be expected to take up the regulatory cudgels on this issue and suggest that Bill Barr's Justice Department might have more gumption—and enough tools to enforce strictures against political bias in platform censorship.

We close with the most mocked piece of tech-world litigation in recent weeks – Crown Sterling's lawsuit against BlackHat for not enforcing its code of conduct while the company was delivering a widely disparaged sponsored talk about its new crypto system. Dave Aitel, who runs a cybersecurity conference of his own, lays out the difficulties of writing and enforcing a conference code of conduct. I play Devil's Advocate on behalf of Crown Sterling, and by the end, Dave finds himself surprised to feel just a bit of Sympathy for the Devil.

Download the 275th Episode (mp3).

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