Trumping Schrems II

Episode 336 of the Cyberlaw Podcast


Our interview this week is a deep dive into the mess created by the EU Court of Justice in Schrems II – and some pretty good ideas for how companies might avoid the mess, courtesy of a U.S. Government white paper. I interview Brad Wiegmann, Senior Counselor for the National Security Division at the US Department of Justice about the white paper. We cover a host of arguments and new facts that may help companies navigate the wreckage of Privacy Shield and preserve the standard corporate clauses they've relied on for transAtlantic data transfers. And, yes, the phrase "hypocritical European imperialism" does cross my lips.

In the news, we can't let election eve pass without a look at all the election security threats and countermeasures now being deployed.  I argue that the election security threat is the second coming of Y2K – a threat that is almost certainly an overhyped bogeyman, but one we can't afford to ignore.  Jamil Jaffer and Pete Jeydel push back. Silicon Valley's effort to ensure that no one questions the legitimacy of a Biden victory also comes in for some criticism on my end – and is defended by Nate Jones. My nomination for Flakiest Silicon Valley Election Security Techno-nostrum is the banning of post-election political ads. That just guarantees that speech about the election will default to the biggest "organic" voices on the internet and to the speech police at each platform. Or was that the intent?

Confused about all the TikTok and WeChat litigation? It's pretty simple, really: the US hasn't won a single case, and it's gone down hard in three separate opinions, the latest by US District Judge Beetlestone of Philadelphia. This could be Trump Derangement at work, but the fact is that the Chinese platforms have a plausible argument that Congress prohibited the use of IEEPA to "indirectly regulate" distribution of speech. Banning a social platform might seem to fit within that prohibition, but the result is crazy: it implies that TikTok could replay all the Russian election interference memes from 2016, and the government would be helpless to stop it. On appeal, we may see the courts taking a broader view of the equities. Or they may be tempted to say, "Well, Congress screwed this up, let Congress unscrew it." 

Nate and I try to sum up what we learned from the social media speech suppression hearing on the Hill. Nate sees no common ground emerging despite wide unhappiness with Silicon Valley's role in regulating speech. I am more optimistic that a Congress looking to make progress could agree on first steps toward transparency practices on the platforms. The companies themselves seem to have decided that this is table stakes as they strive to avoid worse

Nate gives us a quick view of the platform speech debate in Europe.  My summary: Silicon Valley is already incentivized by EU law to oversuppress; now they're asking for immunity when they oversuppress, which means, of course, even more suppression. 

In quick hits, Pete talks about the ransomware threat to US health care. Nate explains the tensions between law enforcement and intelligence in Canada. And Pete tells us why fertility clinics are the latest national security concern for CFIUS. 

And more!

Download the 336th Episode (mp3)

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  1. Try to enjoy this day, clingers.

    1. Clingers? So, blue-collar Democrats who didn’t vote for Obama?

      You’re gonna keep just getting your favorite slur wrong over and over, aren’t you?

  2. “it implies that TikTok could replay all the Russian election interference memes from 2016, and the government would be helpless to stop it”

    Shouldn’t the government be exactly powerless to stop that, as much as any other speech?

    (I am 100% sure the government is awful at telling “real native stupid memes” from “mean bad Russian memes”, since all the examples I saw were indistinguishable from real, native stupidity.

    The idea that Foreign Government memes rise to the level of a threat justifying any censorship of anything is hard to credit at this point. Hell, I’m not even sure the State should be allowed to ban actual professional propaganda, especially if an American is repeating it.

    Speech doesn’t stop being speech because Russians said it first, or because it’s meant to be “divisive” or whatever.

    That and, well, a Republic that can be undermined by memes “from a foreign government” is, like one that can’t get volunteers for the armed forces in time of need, one that’s already failed.)

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