The Cyberlaw Podcast: Using the Internet to Cause Emotional Distress is a Felony?

Stewart Baker
Tuesday, June 23, 2020, 4:19 PM

Published by The Lawfare Institute
in Cooperation With

This is the week when the movement to reform Section 230 of the Communications Decency Act got serious. The Justice Department released a substantive report suggesting multiple reforms. I was positive about many of them (my views here). Meanwhile, Sen. Josh Hawley (R-MO) has proposed a somewhat similar set of changes in his bill, introduced this week. Nate Jones and I dig into the provisions, and both of us expect interest from Democrats as well as Republicans.

The National Security Agency has launched a pilot program to provide secure domain name system (DNS) resolver services for US defense contractors. If that’s such a good idea, I ask, why doesn’t everybody do it, and Nick Weaver tells us they can. Phil Reitinger’s Global Cyberalliance offers Quad9 for this purpose.

Gus Hurwitz brings us up to date on a host of European cyberlaw developments, from terror takedowns (Reuters, Tech Crunch) to competition law to the rise of a disturbingly unaccountable and self-confident judiciary. Microsoft’s Brad Smith, meanwhile, wins the prize for best marriage of business self-interest and Zeitgeist in the twenty-first century.

Hackers used LinkedIn’s private messaging feature to send documents containing malicious code which defense contractor employees were tricked into opening. Nick points out just what a boon LinkedIn is for cyberespionage (including his own), and I caution listeners not to display their tattoos on LinkedIn.

Speaking of fools who kind of have it coming, Nick tells the story of the now former eBay executives who have been charged with sustained and imaginatively-over-the-top harassment of the owners of a newsletter that had not been deferential to eBay. (Wired, DOJ)

It’s hard to like the defendants in that case, I argue, but the law they’ve been charged under is remarkably sweeping. Apparently it’s a felony to intentionally use the internet to cause substantial emotional distress. Who knew? Most of us who use Twitter thought that was its main purpose. I also discover that special protections under the law are extended not only to prevent internet threats and harassment of service animals but also horses of any kind. Other livestock are apparently left unprotected. PETA, call your office.

Child abusers cheered when Zoom buckled to criticism of its limits on end-to-end encryption, but Nick insists that the new policy offers safeguards for policing misuse of the platform. (Ars Technica, Zoom)

I take a minute to roast Republicans in Congress who have announced that no FISA reauthorization will be adopted until John Durham’s investigation of FISA abuses is done, which makes sense until you realize that the FISA provisions up for reauthorization have nothing to do with the abuses Durham is investigating. So we’re giving international terrorists a break from scrutiny simply because the President can’t keep the difference straight.

Nate notes that a story previewed in April has now been confirmed: Team Telecom is recommending the blocking of a Hong Kong-US undersea cable over national security concerns.

Gus reminds us that a bitter trade fight between the US and Europe over taxes on Silicon Valley services is coming. (Politico, Ars Technica)

Nick and I mourn the complete meltdown of mobile phone contact tracing. I argue that from here on out, some portion of coronavirus deaths should be classified as mechanogenic (caused by engineering malpractice). Nick proposes instead a naming convention built around the Therac-25.

And we close with a quick look at the latest data dump from Distributed Denial of Secrets. Nick thinks it’s strikingly contemporaneous but also surprisingly unscandalizing.

Download the 321st 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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