The Cyberlaw Podcast: Best Idea Yet for Derailing the Kavanaugh Nomination

Our guest for the interview is Noah Phillips, recently appointed FTC Commissioner and former colleague of mine at Steptoe. Noah fields questions about the European Union, privacy, and LabMD, about whether Silicon Valley suppression of conservative speech should be a competition law issue, about how foreign governments’ abuse of merger approvals can be disciplined, and much more.

The imminent passage of the essential National Defense Authorization Act yields a deep dive on the bill. Most important for business lawyers, the bill will include a transformative rewrite of the Committee on Foreign Investigment in the U.S.’s (CFIUS) investment-review procedures and policies.

Gus Hurwitz lays out many of the cyber issues addressed by the NDAA, while Dr. Megan Reiss explains the act’s creation of a “Solarium” commission designed to force serious strategic thinking about cybersecurity and cyberweapons. I offer my contribution to that debate—an effort to think the unthinkable and come up with tougher options for responding to serious cyberattacks. Since we’re trying to think the unthinkable, I argue, we’re really rooting for the itheberg, so I’ve dubbed it the Itheberg Project. (There must be a Robert Frost reference in there somewhere—about the world ending in solarium or in ithe—but I can’t find it.) I do, however, make an unusual double-barreled offer to those who might want to participate in the Itheberg Project.

All that pales next to a surprisingly lively discussion of circuits splitting over insurance coverage of cyber-related fraud losses. Gus and Matthew Heiman predict that the Supreme Court (or an insurance contract rewrite) will be necessary to resolve the issue—and both of them think the issue is well worth the court’s time. No one tell Judge Kavanaugh or he may just decide to stay on the D.C. Circuit!

In a “lightning” round that the FTC may soon investigate for deceptive labeling:

• Gus mocks the ACLU’s rigged test of Amazon’s face recognition software.
• China screws Qualcomm despite the US deal to save ZTE, letting the NXP acquisition die of neglect.
• The New York Public Service Commission revoked its 2016 conditional approval of the Charter-Time Warner merger.
• And India chooses favorable ground for a fight with WhatsApp over end-to-end encryption.

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As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with Stewart on social media: @stewartbaker on Twitter and on LinkedIn. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@steptoe.com. Remember: If your suggested interviewee appears on the show, we will send you a highly coveted Cyberlaw Podcast mug!

The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.