"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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  1. “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.”

    From the link, “The type of visa obfuscation seen in these instances is not in and of itself an indicator of priority counterintelligence activity,” the analyst wrote. “At this time, there does not appear to be a significant overlap” of cases involving visa fraud and technology theft.

    OK, but then why didn’t the FBI send these over to DHS/INS?

    The Chinese ARE the #1 criminal economic threat and I will agree it’s stupid for the two Dem reps to say these cases were racial profiling.

    1. It was, of course, a pretext, but nothing that works is stupid, and it got the cases dropped, which was their aim.

    2. “OK, but then why didn’t the FBI send these over to DHS/INS?”

      Why didn’t they send the non-overlapping cases over? Maybe because they didn’t overlap? Why don’t they send over all those cases of the Sasquatch raping people in the woods? Because there aren’t cases of Sasquatches raping people in the woods? Because there are no Sasquatches…

      1. I’m talking about the visa fraud cases.

        And actually it looks like the State Dept investigates visa fraud, so to update my original question, why didn’t the FBI send the visa fraud cases over to State?

        1. Where did they come from? Did the FBI learn about the visa fraud cases from State? If so, why send them back?

  2. “Texas has kept pace, adopting a bill that limits Silicon Valley censorship of political speech”

    If only Silicon Valley were in Texas, and subject to Texas jurisdiction.

    1. The gape-jaws can dream, can’t they?

    2. And if Silicon Valley was actually in Texas, there’s no way they’d be attacking these highly lucrative companies.

      1. If Silicon Valley were in Texas, the Intertubes would be the series of tubes envisioned by former senator (and Republican thought leader) Ted Stevens, Twitter would be a series of cans connected by twine, mobile telephones would be the size of cowboy hats, and passwords would be drawled.

        1. Look, I know you are a troll, but you do realize that the Integrated Circuit was invented in Dallas, right? There’s a reason that TI is named “Texas Instruments”

          1. Will Texas Instruments ever be worth 10 percent of Apple, Facebook, or Google?

            A lot of federal money has been spent to try to build knowledge-based industry in Texas. I saw it when I lived there. I also saw that Texas is largely not attractive to educated, modern, reasoning people..Austin is an oasis in a huge state that is mostly flat, dry, ignorant, superstitious, downscale, bigoted, and backward. Most Texans despise Austin for being educated, smart, and modern.

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