The Cyberlaw Podcast: Whaling at Scale

Stewart Baker
Tuesday, June 9, 2020, 4:08 PM

Published by The Lawfare Institute
in Cooperation With

Our interview with Ben Buchanan begins with his report on how artificial intelligence may influence national and cybersecurity. Ben’s quick takes: better for defense than offense, and probably even better for propaganda. The best part, in my view, is Ben’s explanation of how to poison the AI that’s trying to hack you—and the scary possibility that China is already poisoning Silicon Valley’s AI.

By popular request, we’ve revisited a story we skipped last week to do a pretty deep dive on the decision (for now) that Capital One can’t claim attorney-client work product privilege in a Mandiant intrusion response report prepared after its breach. Steptoe litigator Charles Michael and I talk about how IR firms and CISOs should respond to the decision, assuming it stands up on appeal.

Maury Shenk notes the latest of about a hundred warnings, this time from Christopher Krebs, the director of DHS’s cybersecurity agency and the head of Britain’s GCHQ, that China’s intelligence service—and every other intelligence service on the planet—seem to be targeting COVID-19 research.

Maury takes us through the week in internet copyright fights. Ideological copyright enforcement meets the world’s dumbest takedown bots as Twitter removes a Trump campaign video tribute to George Floyd due to a copyright claim. The video is still available on Trump’s YouTube channel.

We puzzle over Instagram’s failure to provide a license to users of its embedding API. The announcement could come as an unwelcome surprise to users who believed that embedding images, rather than hosting them directly, provides insulation against copyright claims.

Finally, much as I love Brewster Kahle, I’m afraid that Kahle’s latest move marks his transition from internet hippie to “holy fool”—and maybe a broke one. His Internet Archive, the online library best known for maintaining the Internet Wayback Machine makes scanned copies of books available to the public on terms that resemble a library’s. The setup was arguably legal—and no one was suing—until Kahle decided to let people download more books than his company had paid for. Now he faces an ugly copyright lawsuit.

Speaking of ugly lawsuits, Mark MacCarthy and Paul Rosenzweig comment on the Center for Democracy and Technology’s complaint that Trump violated tech companies’ right to free speech with his executive order on section 230. (Reuters, NYT) I question whether this lawsuit will get far.

This Week in Working the Ref: Facebook and Mark Zuckerberg are facing criticism from users, competitors, civil rights organizations for failing to censor the people those groups hate. (Ars Technica, Politico). Meanwhile, Snap scores points by ending promotion of Trump’s account after concluding his tweets incited violence.

Where is Nate Jones when you need him? He would love this story: A Twitter user sacrificed a Twitter account to show that Trump is treated differently than others by the platform. Of course, the panel notes, that’s pretty much what Twitter says it does.

In quick hits, I serve notice that no one should be surprised if Justice brings an adtech antitrust suit against Google. The Israeli government announces an attack on its infrastructure so late that the press has already identified and attributed its retaliatory cyberattack on Iran’s ports. And somebody pretty good—probably not the Russians, I argue—is targeting industrial firms.

Download the 319th 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 [email protected]. 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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