The Cyberlaw Podcast: Cybersecurity Issues on the Congressional Agenda

Stewart Baker
Tuesday, April 20, 2021, 2:24 PM

Published by The Lawfare Institute
in Cooperation With

Our interview is with Mark Montgomery and John Costello, both staff to the Cyberspace Solarium Commission. The commission, which issued its main report more than a year ago, is swinging through the pitch, following up with new white papers, draft legislative language and enthusiastic advocacy for its recommendations in Congress, many of which were adopted last year. That makes it the most successful of the many cybersecurity commissions that have come and gone in Washington. And it’s not done yet. Mark and John review several of the most important legislative proposals the commission will be following this year. I don’t agree with all of them, but they are all serious ideas and it’s a good bet that a dozen or more could be adopted in this Congress.

In the news roundup, David Kris and I cover the FBI’s use of a single search warrant to remove a large number of web shells from computers infected by China’s irresponsible use of its access to Microsoft Exchange. The use of a search (or, more accurately, a seizure warrant) is a surprisingly far-reaching interpretation of Federal Criminal Rule 41. But despite valiant efforts, David is unable to disagree with my earlier expressed view that the tactic is lawful.

Brian Egan outlines what’s new in the Biden administration’s sanctions on Russia for its SolarWinds exploits. The short version: While some of the sanctions break new ground, as with Russian bonds, they do so cautiously.

Paul Rosenzweig, back from Costa Rica, unpacks a hacking story that has everything—terrorism, the FBI, Apple, private sector hacking and litigation. Short version: we now know the private firm that saved Apple from the possibility of an order to hack its own phone. It’s an Australian firm named Azimuth that apparently only works for democratic governments but that is nonetheless caught up in Apple’s bully-the-cybersecurity-researchers litigation campaign.

Gus Hurwitz talks to us about the seamy side of content moderation (or at least on seamy side) – the fight against “coordinated inauthentic behaviour.”

In quicker takes, Paul gives us a master class in how to read the intel community’s Annual Threat Assessment. David highlights what may be the next Chinese telecom manufacturing target, at least for the GOP, after Huawei and ZTE. I highlight the groundbreaking financial industry breach notification rule that has finished and is moving toward adoption. And Gus summarizes the state of Silicon Valley antitrust legislation—everyone has a bill—so no one is likely to get a bill.

Download the 358th Episode (mp3)

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The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

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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