Software Liability

Episode 447 of the Cyberlaw Podcast.

Our last episode of the Cyberlaw Podcast (No. 446) was a long interview on the U.S. national cybersecurity strategy with Chris Inglis, until recently the national cybersecurity director.  So this episode 447 focuses only on the most controversial recommendation in the strategy – liability for certain security flaws.  Nick Weaver, Maury Shenk and I explore the pros and cons of what's become known as cybersecurity's third rail.

Turning to the U.K., Maury brings us up to date on the pending Online Safety Bill. Signal has threatened to "walk" out of the U.K. if the bill's protections for children threaten its end-to-end encryption ideology. Far from being deterred, members of Parliament are pushing for a tougher bill, and the government is being forced to accommodate them with tough criminal penalties for Big Tech execs who do not take their obligations sufficiently seriously.

Is the Biden administration getting ready to impose restrictions on outbound U.S. investment in critical Chinese industries?  The Wall Street Journal says it is, but Justin Sherman thinks that the administration may just be meeting Congress's requirements for a briefing on the topic. Meanwhile, I wonder whether we've got this tech control thing backwards. If ASPI , the Australian think tank, is right, the U.S. has already lost the lead to China in 37 of 44 critical new technologies, so what we really need to worry about is Chinese restrictions on U.S. access to its technology.

Maury and I explore "woke AI," the notion that the "ethical guardrails" built into ChatGPT and other engines are simply disguised forms of political bias. Maury notes that Justice Gorsuch has questioned whether AI engines might have the protection of section 230. That seems like a legally dubious proposition to us, but don't underestimate the willingness of Big Tech's lawyers to argue the point.

TikTok suffered a setback on the Hill last week, as Republicans passed out of committee a bill effectively banning the app. It was a party line vote, showing how what had been a bipartisan issue is now fraying into partisanship, at least in the House. In the Senate, though, Senate Intelligence Committee Chair Mark Warner is working toward a similar outcome on a bipartisan basis, creating real jeopardy for the company over the next two years. If anyone should be hoping China does not sell arms to Russia, I suggest, it is TikTok.

Speaking of China, the most eye-opening story of the week comes from the Globe and Mail. It breaks a story about how aggressively China tried (and with real success) to tilt the 2021 Canadian national election toward the Liberals, using tactics we are bound to see in other countries.  My favorite? Persuading China-friendly companies to hire students from China in Canada and then release them to "volunteer" for the CCP's favored candidate.

In other China news, Maury and Nick note that Elon Musk's remarks lending credibility to the Wuhan lab leak theory drew a brushback pitch from official Chinese sources, and Nick and I puzzle over stories that China plans to launch 13,000 satellites to keep up with Starlink. Meanwhile, Twitter's revenue continues to sink. I think we can see bottom for the company, but Nick thinks not.

Nick overcomes my skepticism about Meta's deployment of a tool for taking down nude photos and worse. It is a variant of existing methods, but it has the advantage of not requiring victims to send their nude photos to Meta.

Justin responds to my criticism a few episodes back of Duke's study claiming that Americans' mental health data is being sold by data brokers.

In quick hits,

• Nick boldly predicts that autonomous drones are coming to the Ukraine war. In fact, there's a good chance that he'll be sending them there himself.
• Nick schools me on the (qualified) success of 3D-printed guns.
• I note that the Biden administration is now beginning to make the case for renewal of section 702 of FISA.
• Nick and I chew over LastPass's explanation of how it lost control of everyone's passwords.  Our most troubling conclusion is that unless some cybercriminal starts exploiting that breach, we should all assume that the passwords were stolen for espionage, likely by China.
• And, finally, Nick gets to plug his very good paper on the likely Death of Cryptocurrency.

Download 447th Episode (mp3)

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