The Volokh Conspiracy

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The fine line between deepfake legislation and deeply fake legislation

Episode 295 of the Cyberlaw Podcast


There's a fine line between legislation addressing deepfakes and legislation that is itself a deep fake. Nate Jones reports on the only federal legislation addressing the deepfake problem so far. I claim that it is well short of a serious regulatory effort – and pretty close to a fake itself.

In contrast, India seems serious about imposing liability on companies whose unbreakable end-to-end crypto causes harm, at least to judge from the howls of the usual defenders of such products. David Kris explains how the law will work. I ask why Silicon Valley gets to impose the externalities of encryption-facilitated crime on society when we'd never let Big Tech leave us with the tab for water or air pollution just because their products are so cool. In related news, the FBI may be turning the Pensacola military terrorism attack into a slow-motion replay of its San Bernardino fight with Apple, this time with more top cover (and probably better lawyering).

Poor Nate seems to draw all the fake legislation in this episode. He explains a 2020 appropriations rider requiring the State Department to report on how it issues export licenses for cyber espionage capabilities; this is a follow-up to investigative reporting on the way such capabilities ended up being used against human rights activists in the UAE. As we agree, it's an interesting and likely unsolvable policy problem, so the legislation opts for the most meaningless of remedies, requiring the Directorate of Defense Trade Control to report "on cybertools and capabilities licensing, including licensing screening and approval procedures as well as compliance and enforcement mechanisms" within 90 days.

Nate also gets to cover some decidedly un-fake requirements in the 2019 NDAA limiting how defense contractors can use Chinese technology. The other shoe is about to drop, and if the first one was a baby shoe, the second is a Clydesdale's horseshoe.

It's hard to call it fake, but the latest export control rule restricting sales of AI could hardly be narrower. Maury Shenk and I speculate that this is because a long-term turf war has broken out again in export control policy circles. Maury's money is on the business side of that fight, and the narrowness of the AI rule gives weight to his views.

And here's some Christmas cheer for DOJ and national security officials: A federal district court put a lump of coal in Fast Eddie Snowden's stocking, denying him royalties from a book that violated his nondisclosure agreement. Nate thinks it's safe for me to buy a copy, but I'm waiting for appellate confirmation.

Less festive news comes from the European Court of Justice's advocate general opinion in Schrems II, a case that could greatly complicate EU-US data transfers by purporting to put Europeans in charge of how the US defends itself from terrorism. Maury explains; I complain.

David unpacks with clarity a complex Second Circuit decision on the constitutionality of FISA 702 collection. On the whole, Judge Lynch did a creditable job with a messy and unprecedented set of claims, though I question the wisdom of erecting a baroque mansion of judge-made limits on a slippery and narrow foundation like the Fourth Amendment's requirement that searches be "reasonable."

And in short hits:

Finally, to put everyone back in the Christmas spirit, LabMD won nearly a million dollars in fees from the Federal Trade Commission for the FTC's bullheaded pursuit of the company despite the many flaws in its case. The master's opinion makes clear just how badly the FTC erred in hounding LabMD.

Download the 295th Episode (mp3).

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  1. re: "the externalities of encryption-facilitated crime"

    This is a parody, right? Did I miss something and it's April Fools' already?

    The "externalities of encryption-facilitated crime" argument is as bogus as the attempts to impose liability on gun manufacturers for the acts of violent criminals. Will you next shut down all banks because some people commit bank-facilitated crimes? Or what about the roads that all those evil people use to facilitate their escapes?

    Banning products just because some criminals use them is a quick road to tyranny, poverty and squalor. It's also demonstrably ineffective because criminals are generally undeterred by prohibition.

    1. What about the externalities of loss of freedom because government can spy on you at its whim? That's up to tens of trillions of dollars a year as half of humanity is living with a boot stamping on its face. And it looks like forever, thanks to social credit denying loans and bus rides to people who piss off the overlords.

    2. Saw that too. Was confused.

      Also, the lack of strong encryption means a government-mandated increase in the risk of your devices and data being unlawfully accessed. There's a term for 'making it possible to breach encryption' - "security flaw".

    3. It's not a parody, Stewart Baker just doesn't understand how computers or math work.

  2. deepfake...faster modern photoshopping with a scarier name so government can ban it.

  3. Among the benefits of hosting the Volokh Conspiracy for this website is regular association with Libertarians For Government Secrecy, Statist Surveillance, And Diminution Of Privacy Rights.

    It's usually a joint meeting with one Federalist Society practice group or another.

  4. /not sarc
    If your okay with stealing money from Snowden for breech of a nondisclouser agreement, would you also be okay with holding the people at the nsa etc. Accountable for the perjury and treason they committed?

  5. The Government should strengthen the device access security. Anyone can access the device that would increase the risk of exposing personal data of someone or a student as well so at this situation students need to buy coursework paper to submit it before the deadlines. It will definitely help them to increase their marks.

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