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The Cyberlaw Podcast: Has Apple opened a new legal front against the FBI—without telling it?

Stewart Baker
Wednesday, May 27, 2020, 11:23 AM

Published by The Lawfare Institute
in Cooperation With

Our interview is with Mara Hvistendahl, investigative journalist at The Intercept and author of a new book, The Scientist and the Spy: A True Story of China, the FBI, and Industrial Espionage, as well as a deep WIRED article on the least known Chinese AI champion, iFlytek. Mara’s book raises questions about the expense and motivations of the FBI’s pursuit of commercial spying from China.

In the News Roundup, Gus Hurwitz, Nick Weaver, and I wrestle with whether Apple’s lawsuit against Corellium is really aimed at the FBI. The answer looks to be affirmative, since an Apple victory would make it harder for contractors to find hackable flaws in the iPhone.

Germany’s top court ruled that German intelligence can no longer freely spy on foreigners – or share intelligence with other western countries. The court seems to be trying to leave the door open to something that looks like intelligence collection, but the hurdles are many. Which reminds me that I somehow missed the 100th anniversary of the Weimar Republic.

There’s Trouble Right Here in Takedown City. Gus lays out all the screwy and maybe even dangerous takedown decisions that came to light last week. YouTube censored epidemiologist Knut Wittkowski for opposing lockdown. It suspended and then reinstated a popular Android podcast app for the crime of cataloging COVID-19 content. We learned that anyone can engage in a self-help right to be forgotten with a bit of backdating and a plagiarism claim. Classical musicians are taking it on the chin in their battle with aggressive copyright enforcement bots and a sluggish Silicon Valley response.

In that climate, who can blame the Supreme Court for ducking cases asking for a ruling on the scope of Section 230? They’ve dodged one already, and we predict the same outcome in the next one.

Finally, Gus unpacks the recent report on the DMCA from the Copyright Lobbying Office – er, the Copyright Office.

With relief, we turn to Matthew Heiman for more cyber and less law. It sure looks like Israel launched a disruptive cyberattack on Iranian port facility. It was probably a response to Iranian cybe-rmeddling with Israeli water systems.

Nick covers Bizarro-world cybersecurity: It turns out malware authors now can hire their own black-market security pentesters.

I ask about open-source security and am met with derisive laughter, which certainly seems fair after flaws were found in dozens of applications.

I also cover new developments in AI. And the news from AI speech imitation is that Presidents Trump and Obama have fake-endorsed Lyrebird.

Gus reminds us that most of privacy law is about unintended consequences, like telling Grandma she’s violating GDPR by posting her grandchildren's photos without their parents' consent.

Beerint at last makes its appearance, as it turns out that military and intelligence personnel can be tracked with a beer enthusiast app.

Finally, in the wake of Joe Rogan’s deal with Spotify, I offer assurances that the Cyberlaw Podcast is not going to sell out for $100 million.

Download the 317th Episode (mp3).

You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

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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