Cybersecurity & Tech

The Cyberlaw Podcast: Making the Rubble Bounce in Montana

Stewart Baker
Tuesday, December 5, 2023, 11:13 AM

Published by The Lawfare Institute
in Cooperation With

In this episode, Paul Stephan lays out the reasoning behind U.S. District Judge Donald W. Molloy’s decision enjoining Montana’s ban on TikTok. There are some plausible reasons for such an injunction, and the court adopts them. There are also less plausible and redundant grounds for an injunction, and the court adopts those as well. Asked to predict the future course of the litigation, Paul demurs. It will all depend, he thinks, on how the Supreme Court begins to sort out social media and the first amendment in the upcoming term. In the meantime, watch for bouncing rubble in the District of Montana courthouse. (Grudging credit for the graphics goes to Bing’s Image Creator, which refused to create the image until I attributed the bouncing rubble to a gas explosion. Way to discredit trust and safety, Bing!)

Jane Bambauer and Paul also help me make sense of the litigation between Meta and the FTC over children’s privacy and previous consent decrees. A recent judicial decision opened the door for the FTC to pursue modification of a prior FTC order – on the surprising ground that the order had not been incorporated into a judicial order. But that decision simply gave Meta a chance to make an existential constitutional challenge to the FTC’s fundamental organization, a challenge that Paul thinks the Supreme Court is bound to take seriously.

Maury Shenk and Paul analyze an “AI security by design” set of principles drafted by the U.K. and adopted by an ad hoc group of nations that pointedly split the EU’s membership and pulled in parts of the Global South. As diplomacy, it was a coup. As security policy, it’s mostly unsurprising. I complain that there’s little reason for special security rules to protect users of AI, since the threats are largely unformed, with Maury Pushing Back. What governments really seem to want is not security for users but  security from users, a paradigm that totally diverges from the direction of technology policy in past decades.

Maury, who requested listener comments on, his recent AI research, notes Meta’s divergent view on open source AI technology and offers his take on why the company’s path might be different from Google’s or Microsoft’s.

Jane and I are in accord in dissing California’s aggressive new AI rules, which appear to demand public notices every time a company uses spreadsheets containing personal data to make a business decision. I call it the most toxic fount of unanticipated tech liability since Illinois’s Biometric Information Privacy Act.

Maury, Jane and I explore the surprisingly complicated questions raised by Meta’s decision to offer an ad-free service for around $10 a month.

We explore what Paul calls the decline of global trade interdependence and the rise of a new mercantilism. Two cases in point: the U.S. decision not to trust the Saudis as partners in restricting China’s AI ambitions and China’s weirdly self-defeating announcement that it intends to be an unreliable source of graphite exports to the United States in future.

Jane and I puzzle over a rare and remarkable conservative victory in tech policy: the collapse of Biden administration efforts to warn social media about foreign election meddling. 

Finally, in quick hits,

  • I cover the latest effort to extend section 702 of FISA, if only for a short time.

  • Jane notes the difficulty faced by: Meta in trying to boot pedophiles off its platforms.

  • Maury and I predict that the EU’s IoT vulnerability reporting requirements will raise the cost of IoT.

  • I comment on the Canadian government’s deal with Google implementing the Online News Act

Download 484th Episode (mp3)

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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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