Yet Another Synthetic Moral Panic over Privacy

Episode 463 of the Cyberlaw Podcast

Senator Ron Wyden (D-OR) is to moral panics over privacy what Andreessen Horowitz is to cryptocurrency startups. He's constantly trying to blow life into them, hoping to justify new restrictions on government or private uses of data.  His latest crusade is against the intelligence community's purchase of behavioral data, most of which is already generally available to everyone from Amazon to the GRU. He has relaunched his campaign several times, introducing legislation, holding up Avril Haines's confirmation over the issue, and extracting a DNI report on the topic that has now been declassified. The report was a sober and reasonable explanation of why commercial data is valuable for intelligence purposes, so naturally WIRED magazine's headline summary was, "The U.S. Is Openly Stockpiling Dirt on All Its Citizens." Matthew Heiman takes us through the story, sparking a debate that pulls in Michael Karanicolas and Cristin Flynn Goodwin.

Next, Michael explains IBM's announcement that it has made a big step forward in quantum computing.

Meanwhile, Cristin tells us, the EU has taken another incremental step forward in producing its AI Act – mainly by piling even more demands on artificial intelligence companies. We debate whether Europe can be a leader in AI regulation if it has no AI industry. (I think it makes the whole effort easier, since the EU doesn't have to worry about whether its regulatory regime is even remotely plausible. This looks like the EU's working strategy, to judge by a Stanford study suggesting that every AI model on the planet is already in violation of the AI Act's requirements.)

Michael and I discuss a story claiming persuasively that an Amazon driver's dubious allegation of racism led to an Amazon customer being booted out of his own "smart" home system for days. This leads us to the question of how Silicon Valley's many "local" monopolies enable its unaccountable power to dish out punishment to customers it doesn't approve of.

Matthew recaps the administration's effort to prevail in the debate over renewal of section 702 of FISA. This week, it rolled out some impressive claims about the cyber value of 702, including 702's role in identifying the Colonial Pipeline attackers (and getting back some of the ransom). The administration also introduced yet another set of FBI reforms, this time designed to ensure that agents face career consequences for breaking the rules on accessing 702 data.

Cristin and I award North Korea the "Most Improved Nation State Hacker" prize for the decade, as the country triples its cryptocurrency thefts and shows real talent for social engineering and supply chain exploits. Meanwhile, the Russians who are likely behind Anonymous Sudan decided to embarrass Microsoft with a DDOS attack on its application level. The real puzzle is what Russia gains from the stunt.

Finally, in updates and quick hits, we give deputy national cyber director Rob Knake a fond sendoff, as he moves to the private sector; we anticipate an important competition decision in a couple of months as the FTC tries to stop the Microsoft-Activision Blizzard merger in court, and I speculate on what could be a Very Big Deal – the possible breakup of Google's adtech business.

Download 463rd Episode (mp3)

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Comments

[Guardian253]

Those who advocate for government being able to "buy" data from private companies should review case law regarding pen registers and hotel check-in logs, and the rationale why courts have sought to protect that information. In Washington state, the courts have been vocal about privacy to the extent that even hotels would be liable for turning over check-in information to law enforcement.

[Suudy]

Yet WA and other states require disclosure of name, address, and phone number to law enforcement for keg sales. Seems privacy only matters in some cases, and not others. Privacy is not the concern, just the excuse to oppose something.

[jb]

Or it's a balance where you have to consider costs and benefits on both sides of various decisions.

[Dr. Ed 2]

"behavioral data, most of which is already generally available to everyone from Amazon to the GRU"

Perhaps the data ought not be available.

[Brett Bellmore]

Has Baker EVER met a privacy violation he didn't like?

[jb]

It's pretty remarkable how the one topic that basically all of the commentariat on the site can agree upon: Baker's takes on privacy are terrible.

[Brett Bellmore]

I'm pretty sure we can also agree that Blackman needs a better haircut.

[Rev. Arthur L. Kirkland]

I do not know what it is, but it is not a haircut.

[Rev. Arthur L. Kirkland]

Stewart Baker and Josh Blackman are among the most active contributors to this blog, and I sense they are doing precisely what Prof. Volokh envisioned when he selected them.

[ReaderY]

The privacy arguments may or may not be compelling, may or may not deserve to prevail. But they strike me as considerably more rational and having considerable more force than the label “synthetic moral panic” would tend to suggest.

[M L]

The first such "moral panic" being the drafting and adoption the 4th amendment?

[Krayt]

I am vastly more concerned with government panopticons than whether companies think I am more interested in spark plugs or blenders.

It is not a given that, as all life moves online for and by the convenience of the people, that government gets to stand astride it like Zeus and Athena looking down on their peons.

This is the tyrant’s dream, to watch what opponents do and who they contact and maybe even why. It is because of historical monstrous abuse by government, nay, by power hungry tyrants and demagogues, that these protections were put in place.

If companies are selling this to other governments, including unfriendly ones, I submit the solution is not to unwind protections that have served us well for over 200 years.

[polakerik]

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