The Cyberlaw Podcast: Cyberwar For Real This Time?

Troops and sanctions and accusations are coming thick and fast in Ukraine as we record the podcast. Michael Ellis draws on his past experience at the National Security Council (NSC) to guess how things are going at the White House, and we both speculate on whether the conflict will turn into a cyberwar that draws the United States in. Neither of us thinks so, though for different reasons.

Meanwhile, Nick Weaver reports, the Justice Department is gearing up for a fight with cryptocurrency criminals. Nick thinks it couldn’t happen to a nicer industry. Michael and I contrast the launching of this initiative with the slow death of the China initiative at the hands of a few botched prosecutions. Michael and I do a roundup of news (all bad) about face recognition. District Judge Sharon Johnson Coleman (ND IL) gets our prize for least persuasive first amendment analysis of the year in an opinion holding that collecting and disclosing public data about people (what their faces look like) can be punished with massive civil liability even if no damages have been shown. After all, the judge declares in an analysis that covers a full page and a half (double-spaced), the Illinois law imposing liability “does not restrict a particular viewpoint nor target public discussion of an entire topic.” But not to worry; the first amendment is bound to get a heavy workout in the next big face recognition lawsuit—the Texas Attorney General’s effort to extract hundreds of billions of dollars from Facebook for similarly collecting the face of their users. My bet? This one will make it to the Supreme Court. Next, we review the IRS’s travails in trying to use face recognition to verify taxpayers who want access to their returns. I urge everyone to read my latest op-ed in the Washington Post criticizing the Congressional critics of the effort. Finally, I mock the staff at Amnesty International who think that people who live in high-crime New York neighborhoods should be freed from the burden of being able to identify and jail street criminals using facial recognition. After all, if facial recognition were more equitably allocated, think of the opportunity to identify scofflaws who let their dogs poop on the sidewalk. 

Nick and I dig into the pending collision between European law enforcement agencies and privacy zealots in Brussels who want to ban EU use of NSO’s Pegasus surveillance tech. Meanwhile, in a rare bit of good news for Pegasus’s creator, an Israeli investigation is now casting doubt on press reports of Pegasus abuse.

Finally, Michael and I mull over the surprisingly belated but still troubling disclosures about just how opaque TikTok has made its methods of operation. Two administrations in a row have started out to do something about this sus app, and neither has delivered – for reasons that demonstrate the deepest flaws of both.

Download the 395th Episode (mp3) 

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The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.