Election Aftershocks for Cyberlaw

We open this episode of the Cyberlaw Podcast by considering the (still evolving) results of the 2022 midterm election. Adam Klein and I trade thoughts on what Congress will do. Adam sees two years in which the Senate does nominations, the House does investigations, and neither does much legislation—which could leave renewal of the critically important intelligence authority, Section 702 of the Foreign Intelligence Surveillance Act (FISA), out in the cold. As supporters of renewal, we conclude that the best hope for the provision is to package it with trust-building measures to restore Republicans’ willingness to give national security agencies broad surveillance authorities.

I also note that foreign government cyberattacks on our election, which have been much anticipated in election after election, failed once again to make an appearance. At this point, election interference is somewhere between Y2K and Bigfoot on the “things we should have worried about” scale.

In other news, cryptocurrency conglomerate FTX has collapsed into bankruptcy, stolen funds, and criminal investigations. Nick Weaver lays out the gory details.

A new panelist on the podcast, Chinny Sharma, explains to a disbelieving U.S. audience the U.K. government’s plan to scan all the country’s internet-connected devices for vulnerabilities. Adam and I agree that it could never happen here. Nick wonders why the U.K. government does not use a private service for the task. 

Nick also covers This Week in the Twitter Dogpile. He recognizes that this whole story is turning into a tragedy for all concerned, but he is determined to linger on the comic relief. Dunning-Krueger makes an appearance. 

Chinny and I speculate on what may emerge from the Biden administration’s plan to reconsider the relationship between the Cybersecurity and Infrastructure Security Agency (CISA) and the Sector Risk Management Agencies that otherwise regulate important sectors. I predict turf wars and new authorities for CISA in response. The Obama administration’s egregious exemption of Silicon Valley from regulation as critical infrastructure should also be on the chopping block. Finally, if the next two Supreme Court decisions go the way I hope, the Federal Trade Commission will finally have to coordinate its privacy enforcement efforts with CISA’s cybersecurity standards and priorities. 

Adam reviews the European Parliament’s report on Europe’s spyware problems. He’s impressed (as am I) by the report’s willingness to acknowledge that this is not a privacy problem made in America. Governments in at least four European countries by our count have recently used spyware to surveil members of the opposition, a problem that was unthinkable for fifty years in the United States. This, we agree, is another reason that Congress needs to put guardrails against such abuse in place quickly.

Nick notes the U.S. government’s seizure of what was $3 billion in bitcoin. Shrinkflation has brought that value down to around $800 million. But it is still worth noting that an immutable blockchain brought James Zhong to justice ten years after he took the money.  

Disinformation—or the appalling acronym MDM (for mis-, dis-, and mal-information)—has been in the news lately. A recent paper counted the staggering cost of “disinformation” suppression during coronavirus times. And Adam published a recent piece in City Journal explaining just how dangerous the concept has become. We end up agreeing that national security agencies need to focus on foreign government dezinformatsiya—falsehoods and propaganda from abroad – and not get in the business of policing domestic speech, even when it sounds a lot like foreign leaders we do not like. 

Chinny takes us into a new and fascinating dispute between the copyleft movement, GitHub, and Artificial Intelligence (AI) that writes code. The short version is that GitHub has been training an AI engine on all the open source code on the site so that it can “autosuggest” lines of new code as you are writing the boring parts of your program. The upshot is that open source code that the AI strips off the license conditions, such as copyleft, that are part of some open source code. Not surprisingly, copyleft advocates are suing on the ground that important information has been left off their code, particularly the provision that turns all code that uses the open source into open source itself. I remind listeners that this is why Microsoft famously likened open source code to cancer. Nick tells me that it is really more like herpes, thus demonstrating that he has a lot more fun coding than I ever had. 

In updates and quick hits:

• I note that the peanut butter sandwich nuclear spies have been sentenced.
• Adam celebrates TSMC’s decision to build a 3 nanometer semiconductor fab in Arizona. We cross sword about whether the fab capital of the U.S. will be Phoenix or Austin.  
• I celebrate the Russian government’s acknowledgment of the Cyberlaw Podcast’s reach when it designated long-time regular Dmitri Alperovitch for Russian sanctions. Occasional guest Chris Krebs also makes the list.
• www.mid.ru

Adam and I flag the Department of Justice’s release of basic rules for what I am calling the Euroappeasement court: the quasi-judicial body that will hear European complaints that the U.S. is not living up to human rights standards that no country in Europe even pretends to live up to.