The Cyberlaw Podcast: Should We Add ‘Jumping U.S. Red Lines’ To The 2021 Olympics?

Stewart Baker
Tuesday, July 13, 2021, 12:22 PM

Published by The Lawfare Institute
in Cooperation With

We begin the episode with the Biden administration’s options for responding to continued Russian ransomware outrages. Dmitri Alperovitch reprises his advice in the Washington Post that Putin will only respond to strength and U.S. pressure. I agree but raise the question whether the U.S. has the tools to enforce another set of alleged red lines, given Putin’s enthusiasm and talent for crossing them. If jumping U.S. red lines were an Olympic sport, Russia would have retired the gold by now. Dmitri reminds us that Russian cooperation against cybercrime remains a mirage. He also urges that we keep the focus on ransomware and not the more recent attempt to hack the Republican National Committee.

The Biden White House has been busy this week, or at least Tim Wu has. When Wu took a White House job as special assistant to the president for technology and competition policy, some might have wondered why he did it. Now, Gus Hurwitz only after giving child abusers a six-month holiday from scrutiny tells us, it looks as though he was given carte blanche to turn his recent think tank paper into an executive order. Gus: Biden targets Big Tech in sweeping new executive order cracking down on anti-competitive practices. It’s a kitchen sink full of proposals, Mark MacCarthy notes, most of them more focused on regulation than competition. That observation leads to a historical diversion to the way Brandeisian competition policy aimed at smaller competitors and ended by creating bigger regulatory agencies and bigger companies to match.

We had to cover Donald Trump’s class actions against Twitter, Facebook, and Google, but if the time we devoted to the lawsuits was proportionate to their prospects for success, we’d have stopped talking in the first five seconds.

Mark gives more time to a House Republican leadership plan to break up Big Tech and stop censorship. But the plan (or, to be fair, the sketch) is hardly a dramatic rebuke to Silicon Valley—and despite that isn’t likely to get far. Divisions in both parties’ House caucuses now seem likely to doom any legislative move against Big Tech in this Congress.

The most interesting tech and policy story of the week is the Didi IPO in the U.S., and the harsh reaction to it in Beijing. Dmitri tells us that the government has banned new distributions of Didi’s ride-sharing app and opened a variety of punitive regulatory investigations into the company. This has dropped Didi’s stock price, punishing the U.S. investors who likely pressed Didi to launch the IPO despite negative signals from Beijing.

Meanwhile, more trouble looms for the tech giant, as Senate conservatives object to Didi benefiting from U.S. investment and China makes clear that Didi will not be allowed to provide the data needed to comply with U.S. stock exchange rules.

Mark and Gus explain why 37 U.S. states are taking Google to court over its Play Store rules and why, paradoxically, Google’s light hand in the Play store could expose it more to antitrust liability than Apple’s famously iron-fisted rule.

Dmitri notes the hand-wringing over the rise of autonomous drone weapons but dismisses the notion that there’s something uniquely new or bad about the weapons (we’ve had autonomous, or at least automatic, submarine weapons, he reminds us, since the invention of naval mines in the 14th century).

In quick hits, Gus and Dmitri offer dueling perspectives on the Pentagon’s proposal to cancel and subdivide the big DOD cloud contract.

Gus tells us about the other Fortnite lawsuit against Apple over it app policy; this one is in Australia and was recently revived.

As I suspected, Tucker Carlson has pretty much drained the drama from his tale of having his communications intercepted by NSA. Turns out he’s been seeking an interview with Putin. And no one should be surprised that the NSA might want to listen to Putin.

The Indian government is telling its courts that Twitter has lost its 230-style liability protection in that country. As a result, it looks as though Twitter is rushing to comply with Indian law requirements that it has blown off so far. Still, the best part of the story is Twitter’s appointment of a “grievance officer.” Really, what could be more Silicon Valley Woke? I predict it’s only a matter of months before the whole Valley fills with Chief Grievance Officers, after which the Biden administration will appoint one for the Executive Branch.

And, finally, I give the EU Parliament credit for doing the right thing in passing legislation that lets companies look for child abuse on their platforms. Readers may remember that the problem was EU privacy rules that threatened to end monitoring for abuse all around the world. To make sure we remembered that this is still the same feckless EU Parliament as always, the new authority was grudgingly adopted only after giving child abusers a six-month holiday from scrutiny. It was also limited to three years, after which the Parliament seems to think that efforts to stop the sexual abuse of children will no longer be needed.

And More!

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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