Steptoe Cyberlaw Podcast: “Alexa, Do You Have First Amendment Rights?”

Our guest for episode 152 is Paul Rosenzweig, and we tour the horizon with him.

In the news roundup, Stephanie Roy outlines the deregulatory tangle around ISPs, privacy, security, and the FCC. Maury Shenk briefs us on the European legislation authorizing the quashing of terrorist advocacy on line. Jennifer Quinn-Barabanov explains when standing is a defense against privacy claims and when it isn’t. Together, we remark on the latest example of formerly stodgy banks embracing their inner plaintiffness.

Maury explains why the Germans have banned Cayla the talking (and listening!) doll. I ask whether the Germans next plan to ban speakerphones. (Likely answer: only if they come from America.)

Paul and I dig into the Amazon claim that the first amendment prevents enforcement of a criminal discovery order seeking Amazon Echo recordings. Hey, the suspect might have been ordering books, and that’s a First Amendment activity, says Amazon; and anyway, what Alexa said back to the suspect was an exercise of Amazon’s First Amendment rights. These arguments cry out for the command most frequently heard by my music-playing Echo: “Alexa, that’s enough.”

Almost as unpersuasive to Paul and me is magistrate judge David Weisman’s refusal to issue an order allowing the police to search a home and make anyone on the premises put their fingers on their iPhones to unlock them. That act is testimonial in Weisman’s opinion because, well, because he says it is. (His Fourth Amendment analysis is better, but hardly compelling.)

Paul explains the dramatic clash of cultures hidden in the otherwise esoteric battle between the GSA’s inspector general and “18F,” an Obama-meets-Silicon-Valley effort to streamline government IT development. Like any good tragedy, you knew from the start that this trainwreck was coming, but you still can’t look away.

The draft cyber executive order still isn’t out, despite what looks like a much more disciplined vetting process than other EOs went through. What’s the reward for running a good interagency process in a White House not noted for such discipline? The Homeland Security Council may get folded under the National Security Council.

No one has heard of the National Association of Secretaries of State in 50 years. And if you want to know why, we say, look no further than NASS’s foolish resolution objecting to the designation of electoral systems as "critical infrastructure."

Finally, Paul and I noodle over DHS’s request that Chinese visitors to the US voluntarily disclose their social media handles. I predict that this puts the frog in the pot and the stove on simmer. Meanwhile, Paul finds one border security measure that even I wouldn’t adopt.