Conservative Catfight
Episode 357 of the Cyberlaw Podcast
Stewart Baker |The Volokh Conspiracy |
In the 1980s, they used to say that a conservative was a liberal who'd been mugged. Today's version is that a conservative who embraces regulation of business is a conservative who's been muzzled by Silicon Valley. David Kris kicks off this topic by reprising Justice Thomas's opinion in a case about Trump's authority to block users he didn't like. The case was made thoroughly moot by both the election and Twitter's blocking of Trump, but Justice Thomas wrote separately to muse on the ways in which Twitter's authority to block users could be regulated by treating the company as a common carrier or a public accommodation. David sees a trend for conservative jurists to embrace limits on Big Social's authority to suppress speech.
I recount my recent experience being muzzled by LinkedIn, which would not let me link to a new Daily Mail story about the Hunter Biden laptop and say, "The social media giants that won't let you say the 2020 election was rigged are the people who did their best to rig it: The Hunter Biden laptop was genuine and scandalous according to the Daily Mail." To my mind, Big Social was protecting its own interests by suppressing a story that could convince people the industry has too much power over our national dialogue and our elections. (It turns out that Linkedin was triggered by a reference to the election being rigged, as I learned when I posted 5 variants of my original post, all making the same point in slightly different ways. All but the one saying Silicon Valley tried to rig the election stayed up. You can probably still see the variants on my LinkedIn account).
But my view that we should not let five or six Silicon Valley owners take over our national dialogue is challenged by Jamil Jaffer, a friend and fellow conservative who is appalled at my deviation from Republican antiregulatory orthodoxy and Citizens United first amendment doctrine. It's a great conservative catfight that mirrors the much greater catfight now under way in the Republican party.
Elsewhere in the news roundup, Jordan Schneider and David dig into the claims that China has built advanced weapons systems with the help of American chip designers and Taiwanese fabs. The accusation has led the Biden administration to slap export controls on several Chinese firms. Whether this will work without more aggressive U.S. controls on, say, foreign fabs serving those firms is open to question.
More to the point, it raises questions about long term US industrial policy. David notes that one answer, the bipartisan "Endless Frontier Act," is gaining some momentum. (I understand the bill's motivation but question its execution.) We also touch on the sad story of Intel's recent decade of missteps, and the opportunity that industrial policy has created for GlobalFoundries' IPO.
Jamil takes on adtech espionage, and we all weigh in on the administration's cyber picks, announced over the weekend. The unanimous judgment is that Chris Inglis, Jen Easterly, and Rob Silvers are good picks – and, remarkably, ended up in the right jobs.
In shorter hits, David and I ponder Twitch's unusual decision to start punishing people on line for misdeeds offline – misdeeds that Twitch will investigate itself. Neither of us comfortable with Twitch's decision, including its effort to do privately what we pay cops and courts to do publicly, but there is more justification for the policy in some cases (think child sexual abuse) than might be apparent at first glance.
I tell the story of the Italian authorities identifying and arresting someone trying to hire a hitman using cryptocurrency and the dark web. As far as I know, successful cryptocurrency hitmen remain as rare as unicorns.
David suggests that I should be glad not to live in Singapore, where the penalty for having views the establishment doesn't like could be a criminal libel judgment that I'd be forced to crowdfund like Singapore's government critics. I note that American sites like GoFundMe and Patreon have already imposed ideological screens that mean I wouldn't even be allowed to crowdfund my defense against Big Social.
Finally, for This Week in Data Breaches, I note the new tactic of ransomware gangs trying to pressure their victims to pay by threatening the victims' customers with doxxing—plus the remarkable phenomenon of half-billion-user data troves that the source companies say are not really the result of network breaches and so not disclosable.
And more!
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Stewart Baker practices law in Washington DC.