The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
We open this episode of the Cyberlaw Podcast by considering the (still evolving) results of the 2022 federal election. Adam Klein and I trade thoughts on what Congress will do. Adam sees two years in which the Senate does a lot of nominations, the House does a lot of investigations, and neither does much legislation. Which could leave renewal of a critically important intelligence authority, Section 702 of FISA, out in the cold. As supporters of renewal, Adam and I conclude that the best hope for the provision is to package it with trust-building measures to guard against partisan misuse of national security authorities.
I also note that foreign government cyberattacks on our election machinery, something much anticipated in election after election, once again failed to make an appearance. At this point, I argue, election interference falls somewhere between Y2K and Bigfoot on the "things we need to worry about" scale.
A new panelist to the podcast, Chinny Sharma explains for a disbelieving US audience the UK government's plan to scan all the country's internet-connected devices for vulnerabilities. Adam and I agree that it could never happen here. Nick wonders why the UK government doesn't use a private service for the task.
Nick also covers This Week in the Twitter Dogpile. He recognizes that this whole story is turning into a tragedy for all concerned, but he's determined to linger on the moments of comic relief. Dunning-Krueger makes an appearance.
Chinny and I speculate on what may emerge from the Biden administration's plan to reconsider the relationship between CISA and the Sector Risk Management Agencies that otherwise regulate important sectors. I predict that it will spur turf wars and end in new coordination authority for CISA. In addition, the Obama administration's egregious exemption of Silicon Valley from regulation as critical infrastructure should also be on the chopping block. Finally, if the next two Supreme Court decisions go the way I hope, the FTC will finally have to coordinate its privacy enforcement efforts with CISA's cybersecurity standards and priorities.
Adam reviews the European Parliament's report on Europe's spyware problems. He's impressed (as am I) by the report's willingness to acknowledge that this is not a privacy problem made in America. Governments in at least four European countries by our count have recently used spyware to surveil members of the opposition party, a problem that has been unthinkable for seventy years in the United States. Though maybe not any more, which, we agree, is another reason for Congress to quickly put into place more guardrails against such abuse.
Nick notes the US government's seizure of what was $3 billion in bitcoin. Shrinkflation has brought that value down to around $800 million. But it's worth noting that an immutable blockchain brought James Zhong to justice ten years after he took the money.
Disinformation – or the appalling acronym MDM (for mis-, dis-, and mal-information) – has been in the news lately. A recent paper counted the staggering cost of efforts to suppress "disinformation" during covid times. And Adam published a recent piece in City Journal explaining just how dangerous the concept has become. We end up agreeing that national security agencies need to focus on foreign government dezinformatsiya – falsehoods and propaganda from abroad – and not get in the business of policing domestic speech, even speech that sounds a lot like foreign leaders we don't like.
Chinny takes us into a new and fascinating dispute between the copyleft movement, GitHub, and a new kind of AI that writes code. The short version is that GitHub has been training an AI engine on all the open source code on its site so that an algorithm can "autosuggest" lines of new code as you're writing the boring parts of your program. Sounds great, except that the resulting algorithm tends to reproduce the code it was trained on—without imposing the license conditions, such as copyleft, that were part of the original code. Not surprisingly, copyleft advocates are suing on the ground that important information was improperly stripped from their code, particularly the provision that turns all code that incorporates their open source into open source itself. I remind listeners that this incorporation feature is why Microsoft famously likened open source to cancer. Nick tells me that it's really more like herpes, demonstrating that he has apparently had a lot more fun writing code than I ever had.
In updates and quick hits:
- I note that the nuclear spies who hid their stolen data in a peanut butter sandwich have been sentenced.
- Adam celebrates TSMC's decision to build a 3 nm chip fab in Arizona. We cross swords, though, about whether the fab capital of the US will be Phoenix or Austin.
- I celebrate the Russian government's acknowledgment of the Cyberlaw Podcast's reach by virtue of its designation of long-time regular Dmitri Alperovitch for Russian sanctions. Occasional guest Chris Krebs also made the list.
- Adam and I flag DOJ's release of basic rules for what I'm calling the Euroappeasement Court: the quasijudicial body that will patiently attend to European complaints that the US isn't living up to human rights standards that no country in Europe even pretends to live up to.
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The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets
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