The Volokh Conspiracy

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Digital Dunkirk

Episode 335 of the Cyberlaw Podcast


In this episode, I interview Rob Knake, Senior Fellow at the Council on Foreign Relations, about his recent report, "Weaponizing Digital Trade—Creating a Digital Trade Zone to Promote Online Freedom and Cybersecurity." The theme of the report is what the US can salvage from the wreckage of the 1990s Magaziner Consensus about the democratizing and beneficent influence of an unregulated Silicon Valley. I suggest that, when you're retreating from global ambition to a battered band of democratic nations, talking about "weaponization"  is delusional; what the paper really proposes is a kind of "Digital Dunkirk." Rob and I proceed to disagree about the details but not the broad outlines of his proposal.

In the news roundup, we finally have a Google antitrust complaint to pore over, and I bring Steptoe's Michael Weiner on to explain what the complaint means. Bottom line: it's a minimalist stub of a case, unlikely to frighten Google or produce structural changes in the market—unless a new administration (or a newly incentivized Trump Justice Department) keeps adding to the charges as the investigation wears on.

Speaking of Justice Department filings that serve up less than meets the eye, DOJ has indicted GRU hackers for practically every bad thing that has happened on the internet in the last five years, other than the DNC hack. (In fact, I lost an unsaved Word document in 2017 that I'm hoping will be added to the charges soon.) The problem, of course, is that filing the charges is the easy part; bringing these state hackers to justice is so hard as to be more or less inconceivable.  So one wonders (along with Jack Goldsmith) whether a policy that requires a stream of indictments for all the cyberattacks on the US and its allies is a wise use of resources. Maury Shenk thinks it might be, at least as a way of demonstrating US attribution capabilities, which are indeed impressively showcased in the indictment.

While we're on the subject of questionably effective US retaliation for cyberattacks, Maury notes that the Treasury Department has imposed sanctions on the unpronounceable Russian institute, TsNIIKhM, that seems to have developed the industrial control malware that caused massive outages in Saudi Arabia and that may still be planted in US energy systems as well. Again, no one doubts that heavy penalties should be imposed; the question is whether these penalties will actually ever reach TsNIIKhM.

In another law enforcement action against cyberattacks, Nick Weaver celebrates the German government's dawn raid on spyware exporter, FinFisher. And Maury expresses modest hope for Facebook's Oversight Board now that it has started reviewing content moderation cases. Color me skeptical.

Now that we've seen the actual complaint, Nick has his doubts about Microsoft's legal attack on Trickbot. It may be working, he says, but why is Microsoft doing something that the FBI could have done? I pile on, raising questions about the most recent legal theory Microsoft has rolled out in support of its proposed remedies.

Finally, in quick hits:  I hum a few bars from "John Henry" in response to a Bloomberg story suggesting that CEOs are successfully beating the AI engines parsing their analyst calls and trading on the results. Maury then debunks the parts of the story that made it fun, but not before I've asked whether Spinal Tap was decades ahead of its time in repackaging failure for AI consumption. Maury notes what I predict will be ho-hum Judiciary Committee testimony of Twitter and Facebook CEOs about their suppression of the New York Post "laptop from hell" Hunter Biden story.  I'm much more interested in the Commerce Committee's subpoenaing of contacts between the campaigns and those companies.  Because you just know the campaigns have a whole strategy for working the speech referees of Silicon Valley, and it would be an education to see how they do it.  Nick and I congratulate Edward Snowden on the confirmation that he'll be in Russia forever. And I mock the Portland City Council as well as all the journalists who tried to make face recognition toxic – until it turned out that face recognition might help antifa dox the police.  Suddenly we can't expect to stop the march of technology.

Download the 335th Episode (mp3)

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