Cybersecurity & Tech

The Cyberlaw Podcast: The International Regulatory Dogpile

Stewart Baker
Wednesday, April 19, 2023, 1:39 PM
The latest episode of the Cyberlaw Podcast.

Published by The Lawfare Institute
in Cooperation With

Every government on the planet announced last week an ambition to regulate artificial intelligence. Nate Jones and Jamil Jaffer take us through the announcements. What’s particularly discouraging is the lack of imagination, as governments dusted off their old prejudices to handle this new problem. Europe is obsessed with data protection, the Biden administration just wants to talk and wait and talk some more, while China must have asked ChatGPT to assemble every regulatory proposal for AI ever made by anyone and translate it into Chinese law. 

Meanwhile, companies trying to satisfy everyone are imposing weird limits on their AI, such as Microsoft’s rule that asking for an image of Taiwan’s flag is a violation of its terms of service. (For the record, so is asking for China’s flag but not asking for an American or German flag.)

Matthew Heiman and Jamil take us through the strange case of the airman who leaked classified secrets on Discord. Jamil thinks we brought this on ourselves by not taking past leaks sufficiently seriously.

Jamil and I cover the imminent Montana statewide ban on TikTok. He thinks it’s a harbinger; I think it may be a distraction that, like Trump’s ban, produces more hostile judicial rulings.

Nate unpacks the California Court of Appeals’ unpersuasive opinion on law enforcement use of geofencing warrants.

Matthew and I dig into the unanimous Supreme Court decision that should have independent administrative agencies like the Federal Trade Commission and Securities and Exchange Commission trembling. The court held that litigants don’t need to wend their way through years of proceedings in front of the agencies before they can go to court and challenge the agencies’ constitutional status. We both think that this is just the first shoe to drop. The next will be a full-bore challenge to the constitutionality of agencies beholden neither to the executive or Congress. If the FTC loses that one, I predict, the old socialist realist statue “Man Controlling Trade” that graces its entry may be replaced by one that PETA and the Chamber of Commerce would like better. Bing’s Image Creator allowed me to illustrate that possible outcome. See attached.

 In quick hits: 

Download 453rd 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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