The Volokh Conspiracy

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Have Facebook and Google cornered the market on antitrust troubles?

Episode 390 of the Cyberlaw Podcast


Just one week of antitrust litigation news shows how much legal turbulence Facebook and Google are facing. Michael Weiner gives us a remarkably compact summary of those issues, from the deeply historical (Facebook's purchase of Instagram) to the cutting edge of tech (complaints about Oculus self-preferencing). In all, he brings us current on two state AG case, two FTC cases, and one DOJ case against the twin giants of surveillance advertising.

Speaking of litigation, no major new technology has been greeted with more litigation in its infancy than face recognition. So this week we do a long interview with Hoan Ton-That, the CEO of what must be the most controversial tech startup in decades, Clearview AI. We probe deeply into face recognition's reputation for race and gender bias, and what the company is doing about it. Hoan offers a clear rebuttal to misconceptions about the technology; he is clearly taking the controversy in stride and confident that the technology will overcome efforts to turn it toxic. Meanwhile, I note, the debate is clearing out what would have been formidable competition from the likes of Microsoft, Amazon, and IBM.  If you think face recognition should be banned as racist, sexist, and inaccurate, this interview is worth a listen; it will make you think.

Meanwhile, David Kris notes, rumors of war are rampant on the Russian-Ukrainian border – and in cyberspace. So far, it's a bit of a phony cyberwar, featuring web defacing and dormant file wipers. But it could blow up at any time, and we may be surprised how much damage can be done with a keyboard.

Speaking of damage done with a keyboard, open source software is showing what can be done without even trying (although at least one developer has in fact been trying pretty hard). Nick Weaver and I dig into Log4j and other messes, and evaluate the White House effort to head off future open source debacles.

David is in charge of good news this week. It looks as though Russia has arrested a bunch of REvil coconspirators, including one person that the White House holds responsible for the Colonial Pipeline attack. It's surely not a coincidence that this hint of cooperation from Vladimir Putin comes when he'd very much like to have leverage with the Biden administration over Ukraine.

The EU is now firmly committed to cutting itself off from a host of technologies that are offered, often for free, by Silicon Valley. Google Analytics is out, according to Austrian authorities, because it sends pseudonymized data to the U.S. Ironically, this means that the European Parliament has been violating European law. Nick reminds us that Analytics and the Like button aren't all that could be cut off by this interpretation. Google Translate apparently also depends on transatlantic data flows and could become unavailable in Europe. I offer an incendiary solution to that problem.

End-to-end secure messaging is still under attack, but this week it's European governments, not the FBI, that are taking the shots. The UK government is planning an ad campaign against end-to-end encryption, and Germany is growling about shutting down Telegram for allowing hate speech. Nick issues a heartfelt complaint about the disingenuity of both sides in the crypto debate.

Speaking of Germans who can't live up to their reputation for protecting privacy, Nick notes that German police did exactly what Gapple feared, using a coronavirus contact-tracing app to find potential witnesses to an event unrelated to covid-19.

Meanwhile, in another bit of good news, Twitter gets a suitable reward for the woke colonialism that led it to suspend Nigeria's president from the service for threatening secessionists with war. Instead of the secessionists, President Buhari went to war with Twitter, saying, in effect, "You can't suspend me, I'm suspending you."  Twitter has now unconditionally surrendered to the Nigerian government.

Finally, I claim kinship with Joe Rogan as one of the podcasters that left-leaning NGOs and academics hope to censor. My plan is to create a joint defense fund to which Joe and I will each contribute 1% of our podcasting revenues.

Download the 390th Episode (mp3)

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