The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
If you've been worrying about how a leaky U.S. government can possibly compete with China's combination of economic might and autocratic government, this episode of the Cyberlaw Podcast has a few scraps of good news. The funniest, supplied by Dave Aitel, is the tale of the Chinese gamer who was so upset at the online performance of China's tanks that he demanded an upgrade. When it didn't happen, he bolstered his argument by leaking apparently classified details of Chinese tank performance. The story inspires me to suggest that U.S. intelligence should be subtly degrading the online game performance of other Chinese weapons systems that we need more information about.
There may be similar comfort in the story of Gitee, a well-regarded Chinese competitor to Github that ran into a widespread freeze on open source projects. Jane Bambauer and I speculate that the source of the freeze was a government objection to the code or the comments in several projects. And in the long run, guessing at what it takes to avoid future government freezes will handicap China's software industry and make Western companies more competitive.
In other news, Dave unpacks the widely reported and largely overhyped story of Cyber Command conducting "hunt forward" operations in support of Ukraine.
Mark MacCarthy digs into Justice Samuel A. Alito Jr.'s opinion explaining why he would not have reinstated the district court injunction against Texas's social media regulation. Jane and I weigh in. The short version is that the Alito opinion offers a plausible justification for upholding the law. It is not be the law now, but it could be the law if Justice Alito can find two more votes. And getting those votes may not be all that hard — at least for an opinion upholding more transparency requirements for social media companies.
Mark and Jane also dig deep into the substance and politics of national privacy legislation. Short version: House Democrats have made substantial concessions in the hopes of getting a privacy bill enacted before they must face what's expected to be a hostile electorate. But Senate Democrats may not be willing to swallow those concessions, and Republican members may think they will do better if they wait until after November. Impressed by the concessions, Jane and Mark hold out hope for a deal this year. I don't.
Meanwhile, Jane notes, California is driving forward with regulations under its privacy law. perhaps helping to persuade Republicans that preemption has lots of value for business.
Finally, revisiting two stories from earlier weeks, Dave notes
- The devastating consequences and obscure motivations of Conti's ransomware attacks on the Costa Rican government, and
- The deep tension between the U.S. government and Microsoft over export controls on intrusion tools.
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