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The Cyberlaw Podcast: Software Liability

Stewart Baker
Tuesday, March 7, 2023, 10:22 AM

The latest epsiode of the Cyberlaw Podcast.

Published by The Lawfare Institute
in Cooperation With

Episode 446 of the Cyberlaw Podcast was devoted to a long interview on the U.S. national cybersecurity strategy with Chris Inglis, until recently the national cybersecurity director,  so this episode focuses on the most controversial recommendation in the strategy—liability for certain security flaws.  Nick Weaver, Maury Shenk and I explore the pros and cons of what’s become known as cybersecurity’s third rail.

Turning to the U.K., Maury brings us up to date on the pending Online Safety Bill. Signal has threatened to “walk” out of the U.K. if the bill’s protections for children threaten its end-to-end encryption ideology. Far from being deterred, members of parliament are pushing for a tougher bill, and the government is being forced to accommodate them with criminal penalties for Big Tech execs who do not take their obligations sufficiently seriously.

Is the Biden administration getting ready to impose restrictions on outbound U.S. investment in critical Chinese industries?  The Wall Street Journal says it is, but Justin Sherman thinks that the administration may just be meeting Congress’s requirements for a briefing on the topic. Meanwhile, I wonder whether we have got it backwards. If ASPI , the Australian think tank is right, the U.S. has already lost the lead to China in 37 of 44 critical new technologies, so what we really need to worry about is Chinese restriction on U.S. access to technology.  

Maury and I explore “woke AI,” the notion that the” ethical guardrails” built into ChatGPT and other engines are simply disguised forms of political bias. Maury notes that Justice Gorsuch has questioned whether AI engines might have the protection of section 230. It seems legally dubious that they do, but maybe not beyond the reach of Big Tech’s lawyers to argue otherwise.

TikTok suffered a setback on the Hill last week, as Republicans passed out of committee a bill effectively banning the app. It was a party line vote, showing how what had been a bipartisan issue is now fraying into partisanship, at least in the House. In the Senate, though, Senate Intelligence Committee Chair Mark Warner is working toward a similar outcome on a bipartisan basis, creating real jeopardy for the company over the next two years. If anyone should be hoping China does not sell arms to Russia, I suggest, it is TikTok.

Speaking of China, the most eye-opening story of the week comes from the Globe and Mail. It breaks a story about how aggressively China tried (with success) to tilt the 2021 national election toward the liberals, using tactics we are bound to see in other countries. My favorite? Persuading China-friendly companies to hire students from China studying in Canada and then releasing them to “volunteer” for the candidate the CCP preferred. 

In other China news, Maury and Nick note that Elon Musk’s remarks lending credibility to the Wuhan lab leak theory drew a brushback pitch from official sources, and then Nick and I puzzle over stories that China plans to launch 13,000 satellites to keep up with Starlink. Meanwhile, Twitter’s revenue continues to sink. I think we can see bottom, but Nick thinks not. 

Nick overcomes my skepticism about Meta’s deployment of a tool for taking down nude photos and worse. It is a variant of existing methods, but it does not require the victim to send their nude photos to Meta.

Justin responds to my criticism a few episodes back of Duke’s study claiming that Americans’ mental health data is being sold by data brokers.

In quick hits, 

And, finally, Nick gets to plug his very good paper on the likely Death of Cryptocurrency.

Download 447th 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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