The Volokh Conspiracy

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The Cyber Incident Bill Is a Victory for K Street

Episode 383 of the Cyberlaw Podcast


Two major Senate committees have reached agreement on a cyber incident reporting mandate. And it looks like the big winners are the business lobbyists who got concessions from both committees. At least that's my take. Dmitri Alperovitch adds that the bill may still be in trouble because of Justice Department opposition. And Tatyana Bolton not unfairly credits the Cyber Solarium Commission for getting incident reporting this close to passage.

Meanwhile, another piece of legislation, the Secure Equipment Act of 2021, has already been passed by Congress and signed by the President. It will lock a boatload of Chinese equipment out of U.S. markets. Dmitri explains why the FCC needed this additional authority.

Mark MacCarthy explicates the EU court ruling upholding a $2.8 billion award against Google for "self-preferencing" in shopping searches.

If you're surprised by the Kyle Rittenhouse trial, and the strength of his self-defense claims, I argue, you can blame Facebook and Twitter, who astonishingly suppressed posts arguing that Rittenhouse had acted lawfully in self-defense. In a reverse John Adams moment, Twitter even suspended Rittenhouse's defense counsel for defending him. And Facebook declared him guilty of a mass shooting and blocked even searches for his name.  I wouldn't call that content moderation; it's more like content mob-eration. And if you want more censorship of that sort, but this time in your podcast feed, well, no worries: the NYT is on it; the gray old lady is demanding to know why woke censorship hasn't yet come to podcasts.

This has turned out to be a pretty good week for catching bad guys, Dmitri reports. REvil affiliates have been, arrested, indicted, and had some of their ill-gotten gains seized.

Mark unpacks yet another bipartisan tech regulation-cum-competition bill. This one aims to reduce platforms' ability to foist "opaque algorithms" on their users. Tatyana notes that a lot of the bills trying to improve portability and competition are likely to raise cybersecurity concerns.

Dmitri and I aren't impressed by the hoax email sent out in the FBI's name from a poorly designed FBI website. As hacks go, it's barely one step up from defacing the FBI's website. I argue that the bureau ought to give the hacker a low four-figure bug bounty and call it a day, but Dmitri thinks the hacker will be on the FBI's most wanted list for a while. I tend to agree; there is, after all, no greater crime than Knowingly Embarrassing the Bureau.

In quick hits:

  • Mark gives us an overview of the states' recently updated antitrust complaint against Alphabet's Google.
  • Tatyana and Dmitri talk about the implications of the Commerce Department sending information requests to the world's top chipmakers.
  • Tatyana explains (as much as anyone can) Elon Musk's decision to sell a bunch of Tesla stock because that's what Elon Twitter wanted. We note that Elon promised the SEC he'd show his tweets to a lawyer in advance if they might move the market and wonder whether he actually found a lawyer who thought that tweet was a good idea.
  • I do a quick victory lap for having suspected that Frances Haugen's incoherent retreat from criticizing Facebook's end-to-end encryption was forced on her by the Silicon Valley version of the Deep State. Thanks to Politico, we now know her European tour was run by a batch of lefty digerati who may hate Facebook, but not as much as they hate the FBI.
  • And I mourn the fact that this week the U.S. government finally surrendered to Microsoft and joined the Paris Call for Trust and Security in Cyberspace.

Download the 383rd Episode (mp3)

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