The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
We spend much of this episode of the Cyberlaw Podcast talking about toxified tech – new technology that is being demonized by the press and others. Exhibit One, of course, is "spyware," i.e., hacking tools that allow governments to access phones or computers otherwise closed to them. The Washington Post and the New York Times have led a campaign to turn NSO's Pegasus tool for hacking phones into a radioactive product. Jim Dempsey, though, reminds us that not too long ago, in defending end-to-end encryption, tech policy advocates insisted that the government did not need to mandate access to encrypted phones because they could just hack them instead. David Kris joins in, pointing out that, used with a warrant, there's nothing uniquely dangerous about hacking tools of this kind. I offer an explanation for why the public policy community and its Silicon Valley funders have changed their tune on the issue: Having won the end-to-end encryption debate, they feel free to move on to the next anti-law-enforcement campaign.
That campaign includes private lawsuits against NSO by companies like WhatsApp, whose case was briefly delayed by NSO's claim of sovereign immunity on behalf of the (unnamed) countries it builds its products for. That claim made it to the Supreme Court, David reports, where the U.S. government recently filed a devastating brief that will almost certainly send NSO back to court without any sovereign immunity protection.
Meanwhile, in France, Amesys and its executives are being prosecuted for facilitating the torture of Libyan citizens at the hands of the Muammar Qaddafi regime. Amesys evidently sold an earlier and less completely toxified technology – packet inspection tools – to Libya which is alleged to have tracked down dissidents with it. The criminal case is pending.
And in the U.S., a plethora of tech toxification campaigns are under way, all aimed at Chinese products. This week, Jim notes, the Federal Communications Commission came to the end of a long road that began with jawboning in the 2000s and culminated in a flat ban on installing Chinese telecom gear in U.S. networks. On deck for toxification are DJI's drones, which several Senators see as a comparable national security threat that should be handled with a similar ban. Maury Shenk tells us that the British government is taking the first steps on a similar path, this time starting with a ban on some government uses of Chinese surveillance camera systems.
Those measures do not always work, Maury tells us, pointing to a story that hints at trouble ahead for U.S. efforts to decouple Chinese from American artificial intelligence research and development.
Maury and I take a moment to debunk efforts to persuade readers that Artificial Intelligence (AI) is toxic because Silicon Valley will use it to take our jobs. AI code writing is not likely to graduate from facilitating coding any time soon, we agree. Whether AI can do more in replacing Human Resources (HR) staff may be limited by a different toxification campaign – the largely phony claim that AI is full of bias. Amazon's effort to use AI in HR, I predict, will be sabotaged by this claim, as its effort to avoid charges of bias will almost certainly lead the company's HR department to build race and gender quotas into its AI engine.
And in a few quick hits:
- I express doubt that Australia's "unleash the hounds" approach to ransomware actually has anything to do with one notorious ransomware actor's extortion site going down.
- Maury praises an MIT Technology Review piece that argues persuasively that China's social credit system is not quite as dystopian as it's been portrayed. I point out that, with Airbnb practicing guilt by association and PayPal taking your money for saying things PayPal doesn't like, Silicon Valley can brag that it's going to reach Full Tech Dystopia well before China.
- I cover what is the fourth review in three different administrations of the dual-hatted leadership of NSA and Cyber Command. No change is likely.
- And we close with a downbeat assessment of Elon Musk's chances of withstanding the combined hostility of European and U.S. regulators, the press, and the left-wing tech-toxifiers in civil society. He is a talented guy, I argue, and with a three-year runway, he could succeed, but he probably does not have three years.
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