Cybersecurity & Tech

The Cyberlaw Podcast: High Court, High Stakes for Cybersecurity

Stewart Baker
Tuesday, January 23, 2024, 11:37 AM

Published by The Lawfare Institute
in Cooperation With

The Supreme Court heard argument last week in two cases seeking to overturn the Chevron doctrine that defers to administrative agencies in interpreting the statutes that they administer. The cases have nothing to do with cybersecurity, but Adam Hickey thinks they’re almost certain to have a big effect on cybersecurity policy. That’s because Chevron is going to take a beating, if it survives at all. That means it will be much tougher to repurpose existing law to deal with new regulatory problems. Given how little serious cybersecurity legislation has been passed in recent years, any new cybersecurity regulation is bound to require some stretching of existing law – and to be easier to challenge.

Case in point: Even without a new look at Chevron, the EPA was balked in court when it tried to stretch its authorities to cover cybersecurity rules for water companies. Now, Kurt Sanger tells us, EPA, FBI, and CISA have combined to release cybersecurity guidance for the water sector. The guidance is pretty generic; and there’s no reason to think that underfunded water companies will actually take it to heart. Given Iran’s interest in causing aggravation and maybe worse in that sector, Congress is almost certainly going to feel pressure to act on the problem. 

CISA’s emergency cybersecurity directives to federal agencies are a library of flaws that are already being exploited. As Adam points out, what’s especially worrying is how quickly patches are being turned into attacks and deployed. I wonder how sustainable the current patch system will prove to be. In fact, it’s already unsustainable; we just don’t have anything to replace it.

The good news is that the Russians have been surprisingly bad at turning flaws into serious infrastructure problems even for a wartime enemy like Ukraine. Additional information about Russia’s attack on Ukraine’s largest telecom provider suggests that the cost to get infrastructure back was less than the competitive harm the carrier suffered in trying to win its customers back. 

Companies are starting to report breaches under the new, tougher SEC rule, and Microsoft is out of the gate early, Adam tells us. Russian hackers stole the company’s corporate emails, it says, but it insists the breach wasn’t material. I predict we’ll see a lot of such hair splitting as companies adjust to the rule. If so, Adam predicts, we’re going to be flooded with 8-Ks. 

Kurt notes recent FBI and CISA warnings about the national security threat posed by Chinese drones. The hard question is what’s new in those warnings. A question about whether antitrust authorities might investigate DJI’s enormous market share leads to another about the FTC’s utter lack of interest in getting guidance from the executive branch when it wanders into the national security field. Case in point: After listing a boatload of “sensitive location data” that should not be sold, the FTC had nothing to say about the personal data of people serving on U.S. military bases. Nothing “sensitive” there, the FTC seems to think, at least not compared to homeless shelters and migrant camps.

Michael Ellis takes us through Apple’s embarrassing failure to protect users of its Airdrop feature.

Adam is encouraged by a sign of maturity on the part of OpenAI, which has trimmed its overbroad rules on not assisting military projects.

Apple, meanwhile, is living down to the worst Big Tech caricature in handling the complaints of app developers about its app store. Michael explains how Apple managed to beat 9 out of 10 claims brought by Epic and still ended up looking like the sorest of losers.

Michael takes us inside a new U.S. surveillance court just for Europeans, but we end up worrying about the risk that the Obama administration will come back to make new law that constrains the Biden team. 

Adam explains yet another European Court of Justice decision on GDPR. This time, though, it’s a European government in the dock. The result is the same, though: national security is pushed into a corner, and the data protection bureaucracy takes center stage. 

We end with the sad disclosure that, while bad cyber news will continue, cyber-enabled day drinking will not, as Uber announces the end of Drizly, its liquor delivery app.

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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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