The Cyberlaw Podcast: ‘Cheap Fakes’ and the End of Blackmail

Stewart Baker
Tuesday, May 28, 2019, 6:10 PM

Paul Rosenzweig leads off with an enduring and fecund feature in Washington these days: China Tech Fear.

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Paul Rosenzweig leads off with an enduring and fecund feature in Washington these days: China Tech Fear. We cover the Trump administration’s plan to blacklist up to five Chinese surveillance companies, including Hikvision, for contributing to human rights violations against Uighurs in the Xinjiang province in China, the Department of Homeland Security’s rather bland warning that commercial Chinese drones pose a data risk for U.S. users, and the difficulty U.S. chipmakers are facing in getting “deemed export” licenses for Chinese nationals.

We delve deeper into a remarkably shallow and agenda-driven New York Times article by Nicole Perlroth and Scott Shane blaming the National Security Agency for Baltimore’s ransomware problem without ever asking why the city failed for two years to patch its systems. David Kris uses the story to talk about the vulnerabilities equities process and its flaws.

There may be a lot—or nothing—to the Navy email “spyware” story, but David points out just how many modern cyber issues it touches. With the added fillip of a “Go Air Force, Beat Navy” theme not usually sounded in cybersecurity stories.

Paul expands on what I have called “Cheap Fakes” (as opposed to “Deep Fakes”): the Pelosi video manipulated to make her sound impaired. And he manages to find something approaching good news in the advance of faked video—it may mean the end of (video) blackmail.

But not the end of “revenge porn” and revenge porn laws. I ask Gus Hurwitz whether those laws are actually protected by the Constitution, and the answer turns out to be highly qualified. But, surprisingly, media lawyers aren’t objecting that revenge porn laws that criminalize the dissemination of true facts are on a slippery slope to criminalizing news media. That is the argument they’re making about the expanded charges of espionage against WikiLeaks founder Julian Assange. David offers his view of the pros and cons of the indictment.

And Gus closes us out with some almost unalloyed good news. Despite my suspicion of any bipartisan bill in the current climate, he insists that the Senate-passed anti-robocalling bill is a straight victory for the Forces of Good. But, he warns, the House could still screw things up by adding a private right of action along the lines of the Telephone Consumer Protection Act, which has provided the plaintiffs bar with an endless supply of cases without actually benefiting consumers.

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The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.

Stewart A. Baker is a partner in the Washington office of Steptoe & Johnson LLP. He returned to the firm following 3½ years at the Department of Homeland Security as its first Assistant Secretary for Policy. He earlier served as general counsel of the National Security Agency.

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