Is the government's antitrust case against Google already in trouble?

Episode 472 of the Cyberlaw Podcast

That's the question I have after the latest episode of the Cyberlaw Podcast. Jeffery Atik lays out the government's best case: that Google artificially bolstered its dominance in search by paying to be the default search engine everywhere. That's not exactly an unassailable case, at least in my view, and the government doesn't inspire confidence when it starts out of the box by suggesting it lacks evidence because Google did such a good job of suppressing "bad" internal corporate messages. Plus, if paying for defaults is bad, what's the remedy? Not paying for them? Assigning default search engines at random? That would set trust-busting back a generation with consumers.  There are still lots of turns to the litigation, but it feels as though the Justice Department has some work to do.

The other big story of the week was the opening of Schumer University on the Hill, with closed-door Socratic tutorials on AI policy issues for legislators, tech experts, and Schumer favorites. Sultan Meghji suspects that, for all the kumbaya moments, agreement on a legislative solution will be hard to come by. Jim Dempsey sees more opportunity for agreement, although he too is not optimistic that anything will pass. He sees some potential in the odd-couple proposal by Senators Sens. Richard Blumenthal (D-Conn.) and Josh Hawley (R-Mo.) for a framework that would deny AI companies 230-style immunity and require registration and audits of AI models, all to be overseen by a new agency.

Section 702 of FISA inspired some rough GOP-on-GOP action last week, as former Congressman Bob Goodlatte and Matthew Silver launch two separate op-eds attacking me and Michael Ellis by name over FBI searches of 702 data. They think such searches should require probable cause and a warrant if the subject of the search is an American. Michael and I think that's a stale idea beloved of left-leaning law professors but one that won't stop real abuses but will hurt national security. We'll be challenging Goodlatte and Silver to a debate, but in the meantime, watch for our rebuttal, hopefully on the same RealClearPolitics site where the attack was published.

No one ever said that industrial policy was easy, Jeffery tells us. And the release of a new Huawei phone with impressive specs is leading some observers to insist that U.S. controls on chip and AI technology are already failing. Meanwhile the effort to rebuild U.S. chip manufacturing is also faltering as TSMC finds that Japan is more competitive in fab talent than the U.S..

Can the "Sacramento effect" compete with the Brussels effect by imposing California's notion of good regulation on the world? Jim reports that California's new privacy agency is making a good run at setting cybersecurity standards for everyone else. And Jeffery explains how the DELETE Act could transform (or kill) the personal data brokering business, a result that won't necessarily protect your privacy but probably will reduce the number of companies exploiting your data.

A Democratic candidate for a hotly contested Virginia legislative seat has been raising as much as $600 thousand in tips by having sex with her husband on the internet. It's a sign of the times (or maybe how deep into the election season Virginia is) that Susanna Gibson and the Democratic party are not backing down. She says, implausibly, that disclosing her internet exhibitions is a sex crime, or maybe revenge porn. All I can say is thank God she hasn't gone into podcasting; the Cyberlaw Podcast wouldn't stand a chance.

Finally, in quick hits:

• Jeffery and I debate when the product of AI prompts should be granted registered copyright protection.
• I question whether Lyft's new program allowing passengers to specify the gender of their drivers will survive litigation.
• And Jeffery and I note that the Supreme Court has at least briefly stayed the Fifth Circuit's ruling on the Administration's effort to "persuade" social media to suppress the speech of a large chunk of the country.

Download 472nd Episode (mp3)

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