The Volokh Conspiracy

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

Does a dead horse have a right to self-defense when beaten?

Episode 386 of the Cyberlaw Podcast

|The Volokh Conspiracy |

Federal district judge Robert Pitman has enjoined enforcement of Texas's law regulating social media censorship.  In this episode, the ruling sparks a fight between me and Nate Jones that ranges from how much weight should be given to  the speech rights of social media to the Kyle Rittenhouse verdict imposed by Facebook when it decided he was guilty and wouldn't let anyone disagree. On the merits, as before, we agreed that the Obama appointee was on pretty solid ground (for now) in applying the Tornillo line of cases saying that government should not directly regulate the editorial judgments of publishers. But the judge's ruling on the transparency and due process requirements of the law suggests to me that he wasn't prepared to give the law a fair shake. So look for a competitive appeal on the topic and quite possibly a more than competitive certiorari petition as well. By the time we stop beating this horse, he's long past any possible right of self-defense.

Megan Stifel has an easier task: Explaining cybersecurity recommendations for rail and other surface transportation companies. The advice is mostly the kind of simple concepts that could have been offered in the 90s, so we both puzzle over the fierce resistance from industry. Maybe it's the 24-hour requirement to notify TSA of cyber incidents, though I suggest reasons why industry shouldn't be as worried by this requirement as by a similar deadline for data breach notifications.

Nate and I explore proposals from the Biden administration to muster a group of like-minded countries in a campaign to curb sales of surveillance gear to authoritarian regimes. No doubt the initiative was reinforced by news that U.S. State Department phones were recently hacked with spyware from Israel. But I think the whole project fails for a simple reason: authoritarian governments can buy all the surveillance gear they need from China, which is happy to sell it. In the absence of credible enforcement, an international effort to condemn such sales is empty virtue signaling.

I mock an eminently mockable story from the Markup claiming that the PredPol crime prediction software is racist because it urges the police to patrol more poor black neighborhoods than rich white ones without asking whether that's where crime might be concentrated. Then, when the authors finally notice the overlap between neighborhoods with lots of arrests and neighborhoods recommended for heavy patrolling, they suddenly claim that the prediction software must be useless because the same results could be reached without the software.

Speaking of stupid, Megan explains how a "smart contract" turned out to be anything but, allowing hackers to steal $31 million in digital coin. I wonder exactly how much the hacker's feat differs from really good lawyering.

Nate and I look at how well Russia is doing in bringing Twitter to heel with a mobile slowdown. Twitter hasn't broken yet, but it's clear that the authoritarians of the world are slowly winning their battle with Silicon Valley.

Megan tells us about a cybersecurity professional at Ubiquiti who decided to stop riding with the hounds and to ride instead with the fox.  Bad choice; we know how fox hunts usually end for the fox, and this story is no exception.

In updates, I remind listeners of the elaborate gas-lighting effort by Jeff Bezos when he tried to blame the Saudis and the National Enquirer for his brother-in-law's leak of text messages that were deeply embarrassing for the CEO. All the hacking and extortion investigations that Bezos managed to trump up are over now, and the verdict is in: The Saudis didn't do it.

Finally, Megan and I note a Wall Street Journal article on how tough it is to be a spy in a world of smartphones, biometrics, and universal surveillance cameras. Our reaction: Yup.

Download the 386th Episode (mp3)

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