The Cyberlaw Podcast: Solipsistic Europocrisy Meets Judicial Imperialism

Stewart Baker
Tuesday, July 21, 2020, 2:08 PM

Published by The Lawfare Institute
in Cooperation With

The big news of the week was the breathtakingly arrogant decision of the European Court of Justice, announcing that it would set the rules for how governments could use personal data in fighting crime and terrorism.

Even more gobsmacking, the court decided to impose those rules on every government on the planet – except the members of the European Union, which are beyond its reach. Oh, and along the way the court blew up the Privacy Shield, exposing every transatlantic business to massive liability, and put the EU on a collision course with China over China’s most sensitive domestic security operations. This won’t end well. Paul Hughes helps me make sense of the decision.

In the interview, I talk to Darrell West, co-author of Turning Point—Policymaking in the Era of Artificial Intelligence. We mostly agree on where AI is already making a difference, where it’s still hype, and how it will transform war. Where we disagree is over the policy prescriptions for avoiding the worst outcomes. I disagree with the relentless focus of the book (and every other book in recent years) on the questionable claim of AI bias, and Darrell and I have a spirited disagreement over my claim that his prescription will hide numerical racial and gender quotas in every aspect of life that AI touches.

Iranian cyberspies make pretty good training videos, Sultan Meghji tells us, but they’re not taking any bows after leaving the videos exposed online.

If you thought Twitter’s content resembled middle school, wait until you see their security measures in action. Nate Jones has the details, but my takeaway is that middle school science projects are usually handled a lot more responsibly than Twitter’s “god mode” dashboard.

BIPA, the Illinois biometric privacy act, has inspired lawsuits against users of a database assembled to reduce AI bias. Mark MacCarthy explains that the law prohibits use of biometrics (like pictures of your face) without consent. I observe that this makes BIPA the COVID-19 of privacy law. Anyone who touches this database will be infected with liability, at least if the plaintiff’s surprisingly plausible theory holds up.

Sultan reminds us that the PRC has now been caught twice requiring companies in China to use tax software with built-in malware. You know what they say: “Once is happenstance. Twice is coincidence. Three times is enemy action.” I don’t think we’ll need to wait long to see number three.

Nate gives us a former government lawyer’s take on the CIA’s new authority to conduct cyber covert action. (Yahoo, Lawfare) Ordinarily, he’d be skeptical of keeping those decisions away from the White House, but in this case, he’ll make an exception. My take: If unshackling the CIA has produced the APT34 and FSB hacks and data dumps, what’s not to like?

In short hits, I mock the Justice Department spokesperson who claimed that Ghislaine Maxwell was engaged in “a misguided effort to evade detection” when she wrapped her cellphone in tin foil. And Mark and I cross swords over Reddit’s capture by the Intolerant Left. You make the call: When Reddit declares that exposing fake hate crimes as hoaxes is a form of hate speech, is that anecdotal evidence of left-wing bias or stone-cold proof of epistemic closure?

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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