The Cyberlaw Podcast: Raven Mad

Stewart Baker
Tuesday, November 2, 2021, 9:14 AM

Published by The Lawfare Institute
in Cooperation With

In this episode, Dave Aitel and I dig into the new criminal law the House intelligence committee has proposed for workers at intelligence agencies. The proposal is driven by the bad decisions of three intel agency alumni who worked for the United Arab Emirates, doing phone hacking and other intrusions under the sobriquet of Project Raven. Dave criticizes the broad language, the assumption that hacking for the government teaches things you can’t learn in the private sector, and the use of criminal penalties where reporting obligations would suffice. I plug a podcast on the topic released by the Association of Former Intelligence Officers.

Maury Shenk and I dig into the Federal Communications Commission's decision to kick China Telecom off the U.S. telecommunications network. My view: this decision was overdetermined, a perfect storm of bad politics, poor decisions by China Telecom, and the fact that no American company has ever been licensed to do in China what China Telecom has spent 20 years doing in the United States.

We also dig into the proposal of a global regulatory alliance, Financial Action Task Force (FATF), to impose some fairly strict requirements on cryptocurrency transactions.  A lot of companies are criticizing the proposal, but unlike five years ago, they’re weighed down by the existence of an entire ransomware industry that depends on cryptocurrency.

The EU, meanwhile, is struggling to implement sanctions for cyberattacks. As usual, Europe is its own worst enemy, tied down by excessive politicization, weak intelligence collection made weaker by a lack of sharing, and aggressive judicial oversight.

Maury and I track down a tip about France trying to turn cloud security standards into a weapon for excluding U.S.-owned providers. The big cloud companies are deemed insecure because they aren’t immune to U.S. legal process. But neither are the “big” European champions, since they almost certainly are subject to U.S. jurisdiction. So not only will EU buyers of cloud services be stuck with Deutsche Telekom and its two percent market share, they still won’t be safe from the long arm of U.S. discovery. European data protection policy at its finest!

We briefly explore Facebook whistleblower Frances Haugen’s flirtation with criticizing Facebook for adopting end-to-end encryption (e2e). Once she discovered that criticizing e2e is beyond the pale, however, she retreated into a cloud of incomprehensibility. I capture the moment in my latest effort to turn cyber policy into cartoons.

Download the 381st 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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