The Cyberlaw Podcast: Google’s Spamgate

Stewart Baker
Thursday, May 5, 2022, 10:36 AM

Published by The Lawfare Institute
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Retraction: An earlier episode of the Cyberlaw Podcast may have left the impression that I think Google hates mothers. I regret the error. It appears that, in reality, Google only hates Republican mothers who are running for office. But to all appearances, Google really, really hates them. A remarkable, and apparently damning study disclosed that during the most recent federal election campaign, Google’s Gmail sent roughly two-thirds of GOP campaign emails to users’ spam inboxes while downgrading less than ten percent of the Dems’ messages. Jane Bambauer lays out the details, which refute most of the excuses Google might offer for the discriminatory treatment. Notably, neither Outlook nor Yahoo! mail showed a similar pattern. Tatyana thinks we should blame Google’s algorithm, not its personnel, but we’re all eager to hear Google’s explanation, whether it’s offered in the press, Federal Election Commission (FEC), in court, or in front of Congressional investigators after the next election.

Jordan Schneider helps us revisit China’s cyber policies after a long hiatus. Things have NOT gotten better for the Chinese government, Jordan reports. Stringent lockdowns in Shanghai are tanking the economy and producing a surprising amount of online dissent, but with Hong Kong’s death toll in mind, letting omicron spread unchecked is a scary prospect, especially for a leader who has staked his reputation on dealing with the virus better than the rest of the world. The result is hesitation over what had been a strong techlash regulatory campaign.

Tatyana Bolton pulls us back to the Russian-Ukrainian war. She notes that Russia Is not used to being hacked at anything like the current scale, even if most of the online attacks are pinpricks. She also notes Microsoft’s report on Russia’s extensive use of cyberattacks in Ukraine. All that said, cyber operations remain a minor factor in the war.

Michael Ellis and I dig into the ODNI’s intelligence transparency report, which inspired several differed takes over the weekend. The biggest story was that the FBI had conducted “up to” 3.4 million searches for U.S. person data in the pool of data collected under section 702 of the Foreign Intelligence Surveillance Act (FSA). Sharing a brief kumbaya moment with Sen. Ron Wyden, Michael finds the number “alarming or meaningless,” probably the latter. Meanwhile, FISA Classic wiretaps dropped again in the face of the coronavirus. And the FBI conducted four searches without going to the FISA court when it should have, probably by mistake. 

We can’t stay away from the pileup that is Elon Musk’s Twitter bid. Jordan offers views on how much leverage China will have over Twitter by virtue of Tesla’s dependence on the Chinese market. Tatyana and I debate whether Musk should have criticized Twitter’s content moderators for their call on the Biden laptop story. Jane Bambauer questions whether Musk will do half the things that he seems to be hinting. 

I agree, if only because European law will force Twitter to treat European sensibilities as the arbiter of what can be said in the public square. Jane outlines recent developments showing, in my view, that Europe isn’t exactly running low on crazy. A new court decision opens the door to what amounts to class actions to enforce European privacy law without regard for the jurisdictional limits that have made life easier for big U.S. companies. I predict that such lawsuits will also mean trouble for big Chinese platforms.

And that’s not half of it. Europe’s Digital Services Act, now nearly locked down, is the mother lode of crazy. Jane spells out a few of the wilder provisions – only some of which have made it into legal commentary.

Orin Kerr, the normally restrained and professorial expert on cyber law, is up in arms over a recent 9th Circuit decision holding that a preservation order is not a seizure requiring a warrant. Michael, Jane, and I dig into Orin’s agita, but we have trouble sharing it.  

In quick hits:

Download the 405th Episode (mp3)

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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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