The Volokh Conspiracy

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Another week, another warhead

Episode 338 of the Cyberlaw Podcast


This week sees yet another Trump administration initiative to hasten America's decoupling from China. As with MIRV warheads, the theory seems to be that if you launch enough of them, the next administration can't shoot them all down.  Brian Egan lays out this week's initiative, which lifts from obscurity a DoD list of Chinese military companies and excludes the companies from U.S. capital markets

Our interview is with Frank Cilluffo and Mark Montgomery. Mark is Senior Fellow at the Foundation for Defense of Democracies and Senior Advisor to the congressionally mandated Cyberspace Solarium Commission. Previously, he served as Policy Director for the Senate Armed Services Committee under Senator John S. McCain—and before that served for 32 years in the U.S. Navy as a nuclear trained surface warfare officer, retiring as a Rear Admiral in 2017. Frank is director of Auburn University's Director of Auburn University's McCrary Institute for Cyber and Critical Infrastructure Security. He served on the Cyberspace Solarium Commission and chaired the Homeland Security Advisory Council's subcommittee on economic security.

We talk about the unexpected rise of the industrial supply chain as a national security issue. Both Frank and Mark were moving forces in two separate reports highlighting the issue, as was I. (See also my op-ed on the same topic.) So, if we seem suspiciously in agreement on supply chain issues, it's because we are suspiciously in agreement on supply chain issues. Still, as an introduction to one of the surprise hot issues of the year, it's not to be missed.

After our interview in episode 336 of a Justice Department official on how to read Schrems II narrowly, you knew it was only a matter of time before we heard from Europe. Charles Helleputte reviews the European Data Protection Board's effort to give more authoritative and less comfortable advice to U.S. companies that want to keep relying on the standard contractual clauses. The Justice Department take on the topic manages to squeak through without a direct hit from the privacy bureaucrats.  Still, the EDPB (and the EDPS even more so) makes clear that anyone following the DOJ's lead is in for an uphill fight. (For those who want more of Charles's thinking on the topic, see this short piece.)

Zoom has been allowed to settle an FTC proceeding for deceptive conduct (claiming that its crypto was end to end when it wasn't, and more). Mark MacCarthy gives us details.  I throw shade on the FTC's failure to ask any serious national security questions about a company that deserves some. 

Brian brings us up to speed on TikTok.  Only one of the Trump administration penalties remains unenjoined. My $50 bet with Nick Weaver—that CFIUS will overcome the judicial skepticism that IEEPA could not—is hanging by a thread. Casey Stengel makes a brief appearance to explain why TikTok might win. 

Brian also reminds us that export control policymaking is even slower and less functional on the other side of the Atlantic, as Europe tries, mostly ineffectively, to adopt stricter limits on exports of surveillance tech

Mark and I admire the new Aussie critical-infrastructure cybersecurity initiative, for its clarity if not for its likely political appeal. 

Charles explains and I decry the enthusiasm of European courts for telling Americans what they can say and read on line, as an Austrian court tells Facebook to take down worldwide the description of an Austrian politician as belonging to a "fascist party." Apparently, we aren't allowed to say that political censorship is what members of a fascist party tend to advocate; but don't worry about our liability; we can't pronounce the plaintiff's name.  

So, in retrospect, how did the United States do in policing all the new cyberish threats to the 2020 election

  • Brian gives the government credit for preventing foreign interference. I question the whole narrative of foreign interference, which didn't have much effect in 2016 or 2020 (other than the hack and dump operation against the DNC) but did align conveniently with Democratic messaging in both years (Hillary only lost because of the Russians! Ignore Trump's corruption allegations because they're just more Russian interference!).
  • Mark and I wonder what Silicon Valley thinks it's accomplishing with its extended bans on political advertising after the election.  After all, it's almost always election season somewhere (see, e.g., Georgia).
  • DHS's CISA did produce a detailed rumor control site that helped correct misunderstandings—but may have corrected one too many of the President's tweets.  In consequence, Under Secretary Chris Krebs, familiar to Cyberlaw Podcast listeners, may be on the chopping block. That would be a shame for DHS and CISA; for Chris it's probably a badge of honor. Frank Cilluffo and Mark Montgomery weigh in with praise for Chris as well.

And more.

Download the 338th Episode (mp3)

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6 responses to “Another week, another warhead

  1. In recent weeks I have seen the 2016 election described as the most corrupt, most interfered with ever, and the 2020 election describes as the least corrupt, least interfered with election ever.

    It seems that the only sure bet is hyperbole.

    1. I’ve not actually seen either of these claims anywhere, so it mostly seems like your comment is hyperbole.

  2. It is Republicans who are obsessed with voter fraud. But only in regions where they lose. They could not care less otherwise. Almost every single class of fraud that has actually been proven involves a small number (often ONE) vote and is almost always committed by a Republican.

    That is the difference between 2016 and 2020.

  3. Here’s a juxtaposition :

    Today we have Stewart Baker describing the latest scattershot incoherence (ie “foreign policy) from this White House as “yet another Trump administration initiative to hasten America’s decoupling from China”

    Meanwhile, over at the National Review, Kevin D. Williamson makes this observation : “Having nuked the development of a U.S.-led Asia-Pacific trade bloc designed to counter the influence of Beijing, our so-called nationalists made room for the creation of a Beijing-led Asia-Pacific trade bloc that will counter the influence of the United States. With nationalists like these, who needs enemies?”

    In a way, it’s almost a microcosm of Trump’s buffoonery. He destroyed the TPP from childish rage against Obama and as symbolic red meat to his political base. He didn’t have a plan (or clue) when he did so, and his attempts to subsequently improvise one were unfocused, undisciplined, and ineffectual. He couldn’t have played into China’s hand better if that was his aim.

    Kinda like the Iranian Pact, huh? There was an NYT article yesterday on the Iranian nuclear program. When Trump entered office Iran had 225 pounds of enriched uranium and were obeying tight restrictions on further processing. Trump’s own administration certified (multiple times) that Iran was following all its obligations under the pact. Their nuclear program was shut down.

    Then Trump destroyed the Iranian Pact from childish rage against Obama and as symbolic red meat to his political base. He didn’t have a plan (or clue) when he did so, and his attempts to subsequently improvise one were unfocused, undisciplined, and ineffectual.

    Last week, the International Atomic Energy Agency said Iran now had more than 5,380 pounds of enriched uranium, over eight times the limit set by the 2015 nuclear deal. The “breakout” time for Iran to possibly make a nuclear weapon is now considerably shorter than a year.

    It’s going to take the United States a long time to recover from Donald John Trump.

  4. The Chinese Communist Party (CCP) has its agent in the White House now, Kamala Harris. She represents the interests of the San Fran tech billionaires. They want access to the CCP markets to enrich themselves at the cost of the American people’s welfare. They will collaborate with the CCP to achieve greater enrichment. Biden will do as she tells him. He selected her despite her humiliating him in the debates, and her getting 0.5% of the votes in the primaries.

    1. A quote from my link above :

      “The U.S. Chamber of Commerce said on Monday it was concerned the United States was being left behind after 15 Asia-Pacific economies on Sunday formed the world’s largest free-trade bloc, cementing China’s dominant role in regional trade”

      It seems the person who really represented the interests of China was Donald Trump, who handed Beijing the Asian trade market on a silver platter. His reasons weren’t conspiracy-mongering gibberish though, just buffoonish incompetence.

      (As a side-note, many of Trump’s supporters act the clown too. Sad.)