The Cyberlaw Podcast: The Xi-Hawley Global Consensus on Tech Platforms

Stewart Baker
Tuesday, March 23, 2021, 8:57 AM

Published by The Lawfare Institute
in Cooperation With

Our news roundup for this episode is heavy on China and tech policy. And most of the news is bad for tech companies. Jordan Schneider tells us that China is telling certain agencies, not to purchase Teslas or allow them on the premises, for fear that Elon Musk’s famously intrusive record-keeping systems will give U.S. agencies insight into Chinese facilities and personnel. Pete Jeydel says the Biden administration is prepping to make the same determination about Chinese communications and information technology, sending subpoenas to a number of Chinese tech suppliers. Meanwhile, Apple’s effort to protect its consumers from apps that collect personal data is coming under pressure from what Jordan sees as a remarkable alliance of normally warring companies, including Baidu, Tencent and Bytedance. In addition to their commercial heft, all these companies likely have more juice in Beijing than Apple, so look for Tim Cook to climb down from his privacy high horse in China. (And Russia, where Apple has already agreed to let the Russian government specify the apps that must come preinstalled on iPhones sold in Russia.) Still, you can expect that Apple will continue to bravely refuse to cooperate with the FBI on terrorism and serious crime because that might set a precedent for cooperating with government demands in places like Russia and China (like them, I guess, but, you know, smaller).

But the episode gets its title from our discovery that President Xi’s critique of social media platforms sounds exactly like Sen. Josh Hawley’s. It is, in fact, the global bien pensant consensus, which has no dissenters to speak of now that the Chinese go to Davos. Jordan offers insights into why the Chinese government’s concerns about Big Tech might have its origins in something other than factional strife in Beijing.

David Kris and I dive into the final word from the intelligence community on foreign governments’ interference (via hacking or influence ops) in our 2020 election. The short answer is that the Russians and the Chinese didn’t hack our election machinery, in fact they didn’t even try. So, chest-beating over our 2020 cyber defenses may be a little like doing a victory lap after the other team forfeits. David and I manage to disagree about a few things, including the Hunter Biden laptop story, which I contend is now the principal disinformation campaign of 2020, as the media and Big Tech combined to throttle the story on spurious suspicions of a Russian hand in its provenance; David disagrees.

Pete Jeydel and Ishan Sharma, our interview guest, weigh in on the latest cyber conflict paper from the United Nations. We all agree that it could be worse, and that getting the General Assembly to accept it was an achievement at a time of lowered expectations for the UN.

The Cyber Space Solarium Commission is not going away, Pete and I agree, as witness the most recent report card issued to the Biden administration by a Solarium staffer. In principle, that’s a good thing; commissions need to stick around and fight for their recommendations. But I can’t help complaining that some of the things the commission is fighting for—Senate confirmation of a White House cyber director, and cutting the Department of Homeland Security out of supply chain governance—are bad ideas.

We close with a recognition of the rafts of material supplied over the years to the podcast by the data protection authorities of Europe. They’ve mostly always been an example of what Texans call “all hat and no cattle” – better talkers than doers. But now their lack of serious implementation skills is catching up to them, as the companies they have penalized begin to pursue, and win, judicial appeals. That’s a trend likely to continue, and a good thing too.

Our interview is with Ishan Sharma, from the Federation of American Scientists, and author of “A More Responsible Digital Surveillance Future Multi-stakeholder Perspectives and Cohesive State & Local, Federal, and International Actions."

If you like the episodes where I disagree profoundly with my guests, this one’s for you. I don’t think Ishan gets more than two minutes in before the critiquing begins. Still, he holds his own, defending a vision of surveillance technology that serves democratic ends and is for that reason supported and even subsidized in a global competition with the less democratic alternatives from China. I suspect that he’ll lose friends on both the left and the right as he tries to walk this line, but he’s clearly put a lot of thought into finding an alternative to technopessimism, and he defends it ably.

And more!

Download the 354th 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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