Cybersecurity & Tech

The Cyberlaw Podcast: The Brussels Defect: Too Early Is Worse Than Too Late. Plus: Mark MacCarthy’s Book On ”Regulating Digital Industries.”

Stewart Baker
Tuesday, November 14, 2023, 11:35 AM

Published by The Lawfare Institute
in Cooperation With

That, at least, is what I hear from my VC friends in Silicon Valley. And they wouldn’t get an argument this week from EU negotiators facing what looks like a third rewrite of the much-too -early AI Act. Mark MacCarthy explains that negotiations over an overhaul of the act demanded by France and Germany led to a walkout by EU parliamentarians. The cause? In their enthusiasm for screwing American AI companies, the drafters inadvertently screwed a French and a German AI aspirant

Mark is also our featured author for an interview about his book, "Regulating Digital Industries: How Public Oversight Can Encourage Competition, Protect Privacy, and Ensure Free Speech" I offer to blurb it as “an entertaining, articulate and well-researched book that is egregiously wrong on almost every page.” Mark promises that at least part of my blurb will make it to his website. I highly recommend it to Cyberlaw listeners who mostly disagree with me – a big market, I’m told.

Kurt Sanger reports on what looks like another myth about Russian cyberwarriors – that they can’t coordinate with kinetic attacks to produce a combined effect. Mandiant says that’s exactly what Sandworm hackers did in Russia’s most recent attack on Ukraine’s grid.

Adam Hickey, meanwhile, reports on a lawsuit over internet sex that drove an entire social media platform out of business. Meanwhile, Meta is getting beat up on the Hill and in the press for failing to protect teens from sexual and other harms. I ask the obvious question: Who the heck is trying to get naked pictures of Facebook’s core demographic?

Mark explains the latest EU rules on targeted political ads – which consist of several perfectly reasonable provisions combined with a couple designed to cut the heart out of online political advertising. 

Adam and I puzzle over why the FTC is telling the U.S. Copyright Office that AI companies are a bunch of pirates who need to be pulled up short. I point out that copyright is a multi-generational monopoly on written works. Maybe, I suggest, the FTC has finally combined its unfairness and its anti-monopoly authorities to protect copyright monopolists from the unfairness of Fair Use. Taking an indefensible legal position out of blind hatred for tech companies? Now that I think about it, that is kind of on-brand for Lina Khan’s FTC. 

Adam and I disagree about how seriously to take press claims that AI generates images that are biased. I complain about the reverse: AI that keeps pretending that there are a lot of black and female judges on the European Court of Justice.  

Kurt and Adam reprise the risk to CISOs from the SEC's SolarWinds complaint – and all the dysfunctional things companies and CISOs will soon be doing to save themselves.

In updates and quick hits: 

Download 481st 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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