The Cyberlaw Podcast: U.S.-China Tech Divide—Where Will it End?

Stewart Baker
Wednesday, September 30, 2020, 11:56 AM

Published by The Lawfare Institute
in Cooperation With

Our news roundup is dominated by the seemingly endless ways that the U.S. and China can find to quarrel over tech policy. The Commerce Department’s plan to use an executive order to cut TikTok and WeChat out of the U.S. market have now been enjoined. But the $50 Nick Weaver bet me that TikTok could tie its forced sale up until January is still at risk, because the administration has a double-barreled threat to use against that company—not just the executive order but also CFIUS—and the injunction so far only applies to the first.

I predict that President Xi is likely to veto any deal that appeals to President Trump, just to show the power of his regime to interfere with US plans. That could spell the end of TikTok, at least in the US. Meanwhile, Dave Aitel points out, a similar but even more costly fate could await much of the electronic gaming industry, where WeChat parent TenCent is a dominant player.

And just to show that the U.S. is willing to do to U.S. tech companies what it’s doing to Chinese tech companies, leaks point to the imminent filing of at least one and perhaps two antitrust lawsuits against Google. Maury Shenk leads us through the law and policy options.

The panelists dismiss as PR hype the claim that it was a threat of “material support” liability that caused Zoom to drop support for a PFLP hijacker’s speech to American university students. Instead, it looks like garden variety content moderation aimed this time at a favorite of the far left.

Dave explains the good and the bad of the CISA order requiring agencies to quickly patch the critical Netlogon bug.

Maury and I debate whether Vladimir Putin is being serious or mocking when he proposes an election hacking ceasefire and a “reset” in the cyber relationship. We conclude that there’s some serious mocking in the proposal.

Dave and I also marvel at how Elon Musk, for all his iconoclasm, sure has managed to cozy up to both President Xi and President Trump, make a lot of money in both countries, and take surprisingly little flak for doing so. The story that spurs this meditation is the news that Tesla is so dependent on Chinese chips for its autonomous driving engine that it’s suing the US to end the tariffs on its supply chain.

In quick hits and updates, we note a potentially big story: The Trump administration has slapped new restrictions on exports to Semiconductor Manufacturing International Corporation, China’s most advanced maker of computer chips.

The press that lovingly detailed the allegations in the Steele dossier about President Trump’s ties to Moscow hasn’t been quite so loving in their coverage of the dossier’s astounding fall from grace. The coup de grace came last week when it was revealed that the main source for the juiciest bits was flagged by the FBI as a likely Russian foreign agent; he escaped a FISA order only because he left the country for a while in 2010.

The FISA court has issued an opinion on what constitutes a “facility” that can be tapped with a FISA order. It rejected the advice of Cyberlaw Podcast regular David Kris in an opinion that includes all the court’s legal reasoning but remains impenetrable because the facts are all classified. Maury and I come up with a plausible explanation of what was at stake.

The Trump administration has proposed Section 230 reform legislation similar to the white paper we covered a couple of months ago. The proposal so completely occupies the reasonable middle of the content moderation debate that a Biden administration may not be able to come up with its own reforms without sounding fatally similar to President Trump.

And in yet more China news, Maury and Dave explore the meaning of Nvidia’s bid for ARM and Maury expresses no surprise at all that WeWork is selling off a big chunk of its Chinese operations

And more!

Oh, and we have new theme music, courtesy of Ken Weissman of Weissman Sound Design. Hope you like it!

Download the 330th Episode (mp3)

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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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