The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

"How Can We Run a 12th Century Regime Without a 21st Century Messaging App?"

Episode 373 of the Cyberlaw Podcast


Back at last from hiatus, the podcast finds a host of hot issues to cover. Matthew Heiman walks us through the many ways that China and the US found to get in each other's way on technology. China's new data security and privacy laws take effect this fall, and in keeping with a longstanding theme of the podcast – that privacy law is mostly about protecting the privilege of the powerful—we muse on how legal innovations in the West have empowered China's rulers. The SEC is tightening the screws on Chinese companies that want to list on American exchanges. Meanwhile, SenseTime is going forward with a $2 billion IPO in Hong Kong despite being subject to the stiffest possible Commerce Department sanctions. Talk about decoupling!

In Washington, remarkably, a bipartisan breach notification law is moving through both House and Senate. Michael Ellis explains the unorthodox (but hardly unprecedented) path the law is likely to take – a "preconference" followed by incorporation into the defense authorization bill scheduled to pass this fall.

I ask Brian Egan about tech fallout from the fall of the U.S.-backed regime in Afghanistan. All things considered, it's modest. Despite hand-wringing over data left behind, that data may not be really accessible to the Taliban. Google isn't likely to turn over government emails to the new regime, if only because US sanctions make that legally risky. The Taliban's use of WhatsApp is likely to suffer from the same sanctions barrier.  I predict a Taliban complaint that sanctions are forcing it to run a twelfth century regime with twentieth century technology.

Meanwhile, Texas Republicans are on a roll, as Dems forced to return to the State House sit on their hands. Texas has adopted a creative and aggressive antiabortion law, and tech companies have responded by canceling services for pro-life groups and promising to defend gig workers who are caught up in litigation. Texas has kept pace, adopting a bill that limits Silicon Valley censorship of political speech; it raises many of the same issues as the Florida statute, but without Florida's embarrassing prostration before the Disney theme park empire. I ask whether Texas could have used the same tactics for its interpretation of section 230 that it used in the abortion bill – authorizing private suits but not government enforcement. Such tactics work when there is a real possibility that the Supreme Court will overturn some circuit rulings, and section 230 is ripe for exactly that.

Matthew Heiman and I debate whether the Justice Department's dropping of several Chinese visa fraud cases heralds a retrenchment in Justice's China Initiative.

Michael and I dig into the Apple decision to alienate the privacy lobby in an effort to do something about child sex abuse material on iPhones – and Apple's recent decision to alienate the rest of the country by casting doubt on whether it would in fact make an effort to do something about child sex abuse material on its phones.

Finally, in quick hits, Brian doubts the significance of claims that the Israeli government is cracking down on NSO Group over spyware abuse. Michael picks apart the Cyberspace Solarium Commission's report card on Congress's progress implementing the Commission's recommendations. And Brian highlights the UK's new and much tougher version of CFIUS, the National Security and Investment Act 2021. I turn that into career advice for our listeners.

Download the 373rd Episode (mp3)

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