The Volokh Conspiracy

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Will the Russians add "crossing US red lines" to the 2021 Olympics?

Episode 370 of the Cyberlaw Podcast


We begin the episode with the Biden administration's options for responding to continued Russian ransomware outrages. Dmitri Alperovitch reprises his advice in the Washington Post that Putin will only respond to strength and U.S. pressure.  I agree but question whether the U.S. has the tools to enforce another set of red lines, given Putin's enthusiasm and talent for crossing them. If jumping U.S. red lines were an Olympic sport, Russia would have retired the gold by now. Dmitri further reminds us that Russian cooperation against cybercrime remains a mirage. He also urges that we keep the focus on ransomware and not the more recent attempt to hack the Republican National Committee.

The Biden White House has been busy this week, or at least Tim Wu has. When Wu took a White House job as "Special Assistant to the President for Technology and Competition Policy," some might have wondered why he did it. Now, Gus Hurwitz tells us, it looks as though Wu was given carte blanche to turn his recent think tank paper into an Executive Order.  It's a kitchen sink full of proposals, Mark MacCarthy notes, most of them more focused on regulation than competition. That observation leads to a historical diversion into the way a Brandeisian competition policy aimed at breaking industry into smaller competitors ended by creating big regulatory agencies and bigger companies to match.

We had to cover Donald Trump's class actions against Twitter, Facebook, and Google, but if the time we devoted to writing about the lawsuits was proportionate to their prospects for success, we'd have already stopped.

Mark gives more time to a House Republican leadership plan to break up Big Tech and stop censorship. But the plan (or, to be fair, the sketch) is hardly a dramatic rebuke to Silicon Valley – and despite that fact it isn't likely to get far. Divisions in both parties' caucuses now seem likely to doom any legislative move against Big Tech in this Congress.

The most interesting tech and policy story of the week is the Didi IPO in the U.S., and the harsh reaction to it in Beijing. Dmitri tells us that the government has banned new distributions of Didi's ride-sharing app and opened a variety of punitive regulatory investigations into the company. This has dropped Didi's stock price, punishing the U.S. investors who likely pressed Didi to launch the IPO despite negative signals from Beijing.

Meanwhile, more trouble looms for the ride-sharing giant, as Senate conservatives object to Didi benefiting from U.S. investment and China makes clear that Didi will not be allowed to provide the data needed to comply  with U.S. stock exchange rules.

Mark and Gus explain why 37 U.S. states are taking Google to court over its Play Store rules—and why, paradoxically, Google's light hand in the Play store could expose it more to antitrust liability than Apple's famously iron-fisted rule.

Dmitri notes the hand-wringing over the rise of autonomous drone weapons but dismisses the notion that there's something uniquely new or bad about the weapons (we've had autonomous, or at least automatic, submarine weapons, he reminds us, since the invention of naval mines in the fourteenth century).

In quick hits;

  • Gus and Dmitri offer dueling perspectives on the Pentagon's proposal to cancel and subdivide the big DOD cloud contract.
  • Gus tells us about the other Fortnite lawsuit against Apple over its app store; this one is in Australia and was recently revived.
  • As I suspected, Tucker Carlson has pretty much drained the drama from the tale of having his communications intercepted by NSA. Turns out he's been seeking an interview with Putin. And no one should be surprised that the NSA might want to listen to Putin.
  • The Indian government is telling its courts that Twitter has lost its 230-style liability protection in that country. As a result, it looks as though Twitter is rushing to comply with Indian law requirements that it has blown off so far. Still, the best part of the story is Twitter's appointment of a "grievance officer." Really, what could be more Silicon Valley Woke? I predict it's only a matter of months before the Valley fills with Chief Grievance Officers and the Biden administration appoints one for the United States.
  • And, finally, I give the EU Parliament credit for doing the right thing in passing legislation that lets companies look for child abuse on their platforms. Readers may remember that the problem was an EU privacy rule that threatened to prevent social media from monitoring their platforms for abuse, not just in Europe but around the world. To make sure we knew that it is still the same feckless EU Parliament as before, the law was grudgingly adopted only after giving child abusers a six-month holiday from scrutiny and was scheduled to expire in three years, by which time the Parliament seems to think it can stop worrying about the sexual abuse of children and get back to imposing privacy requirements on the United States that none of its Member States observe.

And More!

Download the 370th Episode (mp3)

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