The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Suddenly, everyone is gunning for Google
Episode 440 of the Cyberlaw Podcast
The big cyberlaw story of the week is the Justice Department's antitrust lawsuit against Google and the many hats the company wears in the online ad ecosystem. Lee Berger explains the Justice Department's theory, which is not dissimilar to the Texas Attorney General's two-year-old lawsuit. When you've lost both the Biden administration and the Texas Attorney General, I suggest, you cannot look too many places for friends – and certainly not to Brussels, which is also pursuing similar claims of its own. So what is the Justice Department's late-to-the-party contribution to this dogpile? At least two things, Lee suggests: a jury demand that will put all those complex Borkian consumer-welfare doctrines in front of a Northern Virginia jury and a "rocket docket" that will allow Justice to catch up with and maybe lap the other lawsuits against the company. This case looks as though it will be long and ugly for Google, unless it turns out to be short and ugly. Still, Mark reminds us, for Justice, finding an effective remedy may be harder than proving anticompetitive conduct.
Nathan Simington assesses the administration's announced deal with Japan and the Netherlands to enforce its tough decoupling policy against China's semiconductor industry. Details are still a little sparse, but some kind of deal was essential for the U.S. campaign to work. For Japan and the Netherlands, the details are critical, and any arrangement will require flexibility and sophistication on the part of the US Commerce Department if it is to work in the long run.
Megan Stifel and I chew over the Justice Department/FBI victory lap after they put a stick in the spokes of The Hive ransomware infrastructure. We agree that the lap was warranted. Among other things, the FBI handled its access to decryption keys with more care than in the past, providing them to many victims before taking down a big chunk of the ransomware gang's tools. The bad news? Nobody was arrested, and the infrastructure can probably be reconstituted in the near term.
Here's an evergreen headline: "Facebook is going to reinstate Donald Trump's account." That could be the opening line of any Trump-Facebook story in the last few months, and that is probably Facebook's strategy – a long, teasing dance of seven veils so that, by the time Trump starts posting, it will be old news. If that is Facebook's PR strategy, it's working, Mark MacCarthy reports. Nobody much cares about the return of Trump, and they certainly do not seem to be mad at Facebook. So the company is out of the woods, but for the ex-President it's a blow to the ego that is bound to sting.
Megan has more good news on the cybercrime front: The FBI identified the North Korean hacking group that stole $100 million in crypto last year – and may have kept the regime from getting its hands on any of the funds.
Nathan unpacks two competing news stories. First, "OMG, ChatGPT will help bad guys write malware." Second: "OMG, ChatGPT will help good guys find and fix security holes." He thinks they are both a bit overwrought, but maybe a glimpse of the future.
Mark and Megan explain TikTok's new offer to Washington. Megan also covers Congress's "TayTay v. Ticketmaster" hearing after disclosing her personal conflict of interest.
Nathan answers my question: how can the FAA be so good a preventing airliners from crashing and so bad at preventing its systems from crashing? The ensuing discussion turns up more on-point bathroom humor than anyone would have expected.
In quick hits, I cover three stories:
- First, my complaint about Gen. Milley's egregious and self-admitted overclassification of January 6th records. And the prospect that he may be investigated for it.
- Next, the Iran-Iraq-War-style, pity-they-can't-both-lose fight between James Dolan, the owner of Madison Square Garden, and the lawyers he's barred from the Garden. In a tactic that reminds me of Donald Trump, Dolan is doubling down on confrontation despite the mounting legal troubles it's created. I blame Daddy issues.
- Finally, Google has won at least one victory in Washington this week: It outmaneuvered the Republican effort to score points over Gmail's partisan spam filtering
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