The Volokh Conspiracy

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One Small Door, Too Many Fat Men: Congress's Tech Agenda

Episode 414 of the Cyberlaw Podcast


It's that time again on the Congressional calendar. All the big, bipartisan tech initiatives that looked so good a few months ago are beginning to compete for time on the floor like fat men desperate to get through a small door. And tech lobbyists are doing their best to handicap the bills they hate while advancing those they like.

We open the Cyberlaw Podcast by reviewing a few of the top contenders. Justin (Gus) Hurwitz tells us that the big bipartisan compromise on privacy is probably dead for this Congress, killed by Senator Maria Cantwell (D-WA) and the new politics of abortion. The big subsidy for domestic chip fabs is still alive, Jamil Jaffer reports, but beset by House and Senate differences, plus a proposal to regulate outward investment in China and Russia by U.S. firms. And Senator Amy Klobuchar's (D-MN) platform anti-self-preferencing bill is being picked to pieces by lobbyists trying to cleave away GOP votes over content moderation and national security. All in all, it's hard times for fat men.

Next, David Kris unpacks the First Circuit decision on telephone pole cameras and the fourth amendment. Technology and Fourth Amendment law is increasingly agoraphobic, I argue, as the Carpenter decision has left aging boomer judges on a vast featureless constitutional plain, lacking principles to guide them and forced to fall back on their sense of what was creepy in their day.

Speaking of creepy, the Australian Strategic Policy Institute (ASPI) has a detailed report oncontent moderation and privacy protections  at TikTok and WeChat. Jamil gives the highlights.

Not that Silicon Valley has anything to brag about when it comes to creepy. I sum up This Week in Big Tech Censorship with two newly emerging rules for conservatives using social media platforms: First, obeying Big Tech's rules is no defense; it just takes a little longer before your business revenue is cut off. Second, having science on your side is no defense. As a Brown University doctor discovered, citing a study that undermines  coronavirus orthodoxy will get you suspended. Who knew we were supposed to follow the science with enough needle and thread to sew its mouth shut?

If Sen. Klobuchar's bill fails, all eyes will turn to Lina Khan's Federal Trade Commission, Gus tells us, and its defense of the "right to repair" may give a clue to how it will regulate.

David flags a Google study of zero-days sold to governments in 2021. He finds it a little depressing, but I note that at least some of the zero-days probably require court orders to implement.

Jamil also reviews a corporate report on security, Microsoft's analysis of how Microsoft saved the world from Russian cyber espionage – or would have if you ignoramuses had just bought more cloud services. OK, it's not quite that bad, but the marketing motivations behind the report show a little too often in what is otherwise a useful review of Russian tactics.

In quick hits:

Download the 414th Episode (mp3)

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