The Cyberlaw Podcast - Episode 395: Cyberwar for Real This Time?

Episode 395: Cyberwar for Real This Time?

02/22/22 • 39 min

The Cyberlaw Podcast

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Cringe-Casting Since 2016

The Cyberlaw Podcast has decided to take a leaf from the (alleged) Bitcoin Bandits’ embrace of cringe rap. No more apologies. We’re proud to have been cringe-casting for the last six years. Scott Shapiro, however, shows that there’s a lot more meat to the bitcoin story than embarrassing social media posts. In fact, the government’s filing after the arrest of Ilya Lichtenstein and Heather Morgan paints a forbidding picture of how hard it is to actually cash $4.5 billion in bitcoin. That’s what the government wants us to think, but it’s persuasive nonetheless, and both Scott and David Kris recommend it as a read.

Like the Rolling Stones performing their greatest hits from 1965 on tour this year, U.S. Senator Ron Wyden of Oregon is replaying his favorite schtick from 2013 or so—complaining that the government has an intelligence program that collects some U.S. person data under a legal theory that would surprise most Americans. Based on the Privacy and Civil Liberties Oversight Board staff recommendations, Dave Aitel and David Kris conclude that this doesn’t sound like much of a scandal, but it may lead to new popup boxes on intel analysts’ desktops as they search the resulting databases.

In an entirely predictable but still discouraging development, Dave Aitel points to persuasive reports from two forensics firms that an Indian government body has compromised the computers of a group of Indian activists and then used its access not just to spy on the activists but to load fake and incriminating documents onto their computers.

In the EU, meanwhile, crisis is drawing nearer over the EU General Data Protection Regulation (GDPR) and the European Court of Justice decision in the Schrems cases. David Kris covers one surprising trend. The court may have been aiming at the United States, but its ruling is starting to hit European companies who are discovering that they may have to choose between Silicon Valley services and serious liability. That’s the message in the latest French ruling that websites using Google Analytics are in breach of GDPR. Next to face the choice may be European publishers who depend on data-dependent advertising whose legality the Belgian data protection authority has gravely undercut.

Scott and I dig into the IRS’s travails in trying to implement facial recognition for taxpayer access to records. I reprise my defense of face recognition in Lawfare. Nobody is going to come out of this looking good, Scott and I agree, but I predict that abandoning facial recognition technology is going to mean more fraud as well as more costly and lousier service for taxpayers.

I point to the only place Silicon Valley seems to be innovating—new ways to show conservatives that their views are not welcome. Airbnb has embraced the Southern Poverty Law Center (SPLC), whose business model is labeling mainstream conservative groups as “hate” mongers. It told Michelle Malkin that her speech at a SPLC “hate” conference meant that she was forever b...

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Cyberwar For Real This Time?

Troops and sanctions and accusations are coming thick and fast in Ukraine as we record the podcast. Michael Ellis draws on his past experience at the National Security Council (NSC) to guess how things are going at the White House, and we both speculate on whether the conflict will turn into a cyberwar that draws the United States in. Neither of us thinks so, though for different reasons.

Meanwhile, Nick Weaver reports, the Justice Department is gearing up for a fight with cryptocurrency criminals. Nick thinks it couldn’t happen to a nicer industry. Michael and I contrast the launching of this initiative with the slow death of the China initiative at the hands of a few botched prosecutions. Michael and I do a roundup of news (all bad) about face recognition. District Judge Sharon Johnson Coleman (ND IL) gets our prize for least persuasive first amendment analysis of the year in an opinion holding that collecting and disclosing public data about people (what their faces look like) can be punished with massive civil liability even if no damages have been shown. After all, the judge declares in an analysis that covers a full page and a half (double-spaced), the Illinois law imposing liability “does not restrict a particular viewpoint nor target public discussion of an entire topic.” But not to worry; the first amendment is bound to get a heavy workout in the next big face recognition lawsuit—the Texas Attorney General’s effort to extract hundreds of billions of dollars from Facebook for similarly collecting the face of their users. My bet? This one will make it to the Supreme Court. Next, we review the IRS’s travails in trying to use face recognition to verify taxpayers who want access to their returns. I urge everyone to read my latest op-ed in the Washington Post criticizing the Congressional critics of the effort. Finally, I mock the staff at Amnesty International who think that people who live in high-crime New York neighborhoods should be freed from the burden of being able to identify and jail street criminals using facial recognition. After all, if facial recognition were more equitably allocated, think of the opportunity to identify scofflaws who let their dogs poop on the sidewalk.

Nick and I dig into the pending collision between European law enforcement agencies and privacy zealots in Brussels who want to ban EU use of NSO’s Pegasus surveillance tech. Meanwhile, in a rare bit of good news for Pegasus’s creator, an Israeli investigation is now casting doubt on press reports of Pegasus abuse.

Finally, Michael and I mull over the surprisingly belated but still troubling disclosures about just how opaque TikTok has made its methods of operation. Two administrations in a row have started out to do something about this sus app, and neither has delivered – for reasons that demonstrate the deepest flaws of both.

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