The Cyberlaw Podcast: An End to End-to-End Encryption?

Stewart Baker
Tuesday, May 17, 2022, 10:07 AM

Published by The Lawfare Institute
in Cooperation With

Is the European Union (EU) about to rescue the FBI from Going Dark? Jamil Jaffer and Nate Jones tell us that a new directive aimed at preventing child sex abuse might just do the trick, a position backed by people who’ve been fighting the bureau on encryption for years

The Biden administration is prepping to impose some of the toughest sanctions ever on Chinese camera maker Hikvision, Jordan Schneider reports. No one is defending Hikvision’s role in China’s Uyghur policy, but I’m skeptical that we should spend all that ammo on a company that probably isn’t the greatest national security threat we face. Jamil is more comfortable with the measure, and Jordan reminds me that China’s economy is shaky enough that it may not pick a fight to save Hikvision. Speaking of which, Jordan schools me on the likelihood that Xi Jinping’s hold on power will be loosened by the plight of Chinese tech platforms, harsh pandemic lockdowns or the grim lesson provided by Putin’s ability to move without check from tactical error to strategic blunder and on to historic disaster.

Speaking of products of more serious national security than Hikvision, Nate and I try to figure out why the effort to get Kaspersky software out of U.S. infrastructure is still stalled. I think the Commerce Department should take the fall. 

In a triumph of common sense and science, the wave of laws attacking face recognition may be receding as lawmakers finally notice what’s been obvious for five years: The claim that face recognition is “racist” is false. Virginia, fresh off GOP electoral gains, has revamped its law on face recognition so it more or less makes sense. In related news, I puzzle over why Clearview AI accepted a settlement of the ACLU’s lawsuit under Illinois’s biometric law. 

Nate and I debate how much authority Cyber Command should have to launch actions and intrude on third country machines without going through the interagency process. A Biden White House review of that question seems to have split the difference between the Trump and Obama administrations. 

Quelle surprise! Jamil concludes that the EU’s regulation of cybersecurity is an overambitious and questionable expansion of the U.S. approach. He’s more comfortable with the Defense Department’s effort to keep small businesses who take its money from decamping to China once they start to succeed. Jordan and I fear that the cure may be worse than the disease.

I get to say I told you so about the unpersuasive and cursory opinion by United States District Judge Robert Pitman, striking down Texas' social media law. The Fifth Circuit has overturned his injunction, so the bill will take effect, at least for a while. In my view some of the provisions are constitutional and others are a stretch; Judge Pitman’s refusal to do a serious severability analysis means that all of them will get a try-out over the next few weeks. 

Jamil and I debate geofenced search warrants and the reasons why companies like Google, Microsoft and Yahoo want them restricted. 

In quick hits, 

Download the 407th 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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