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The Cyberlaw Podcast: Debating FISA 215 after Pensacola

Stewart Baker
Tuesday, December 10, 2019, 11:51 AM

Published by The Lawfare Institute
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The apparent terror attack at Naval Air Station Pensacola spurs a debate among our panelists about whether the FISA Section 215 metadata program deserves to be killed, as Congress has increasingly signaled it intends to do. If the Pensacola attack involved multiple parties acting across US borders, still a live possibility as we talked, then it would be just about the first such attacks since 9/11 – and exactly the kind of attack the metadata program was designed to identify in advance.

Nick Weaver tells us that China has resurrected the Great Cannon to attack a popular Hong Kong forum for protesters. I ask why Google hasn’t started issuing warnings to Web browsers who cross the Great Firewall into China without enabling HTTPS to foil the Great Cannon. Meanwhile, Microsoft is working hard to make GitHub, an early Great Cannon victim, an essential part of China’s IT infrastructure. GitHub was attacked because it hosted some content that China hated, including the New York Times, and we verify in real-time that, despite the lure of the Chinese market, Microsoft has not told GitHub to dump the offending content.

In more China news, the trial lawyers are circling TikTok like a wounded wildebeest on the veldt. A California class action alleges that TikTok harvested and sent data to China, and an Illinois class action charges the company with violating COPPA by marketing to children without sufficient privacy safeguards.

Paul Rosenzweig and I dig deep into the 20-year history behind the now-abandoned proposal to conduct airport facial scans on US citizens leaving the country. We reach broad agreement that this is one of the rare privacy versus national security debates in which there’s precious little privacy or national security at stake.

Matthew Heiman provides an overview of the remarkable international food fight over taxes on digital business. USTR is threatening big tariffs on French wine to counter France’s digital tax. Spain is apparently eager to join France in the fight. And the effort to work everything out at the OECD, where the EU has a 20-1 voting advantage over the US, has predictably not worked out well from the US point of view.

Cue the white cat: The United States has actually imposed sanctions on “Evil Corp.” Nick explains that this is part of criminal charges against two highly effective Russian bank hackers – and arguably a confession of weakness on the US government’s part.

Meanwhile, Amazon’s efforts to avoid tort liability for third-party sales on its site look to be suffering a long strategic defeat in the courts. The latest example is a Sixth Circuit ruling allowing plaintiffs to pursue product tort claims against the Internet giant.

I offer a quick update and some kind words for Nancy Pelosi, who is calling for modification of the North American free trade deal to drop the provision turning Section 230 of the Communications Decency Act into international law. This is a genuinely bipartisan complaint, so perhaps she’ll prevail.

Paul gets stuck explaining two dog-bites-man stories. The FBI says any Russian app could be a counterintelligence threat. What else could they say? And the European Commission, when asked what US regulation of encryption would mean for Europe, says more or less that it may have to move from eyebrow-lifting to throat-clearing.

And Nick closes the program with advice about the new Android exploit that works (in the right circumstances) to compromise apps running on a fully patched and up-to-date Android phone.

Download the 292nd Episode (mp3).

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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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