Steptoe Cyberlaw Podcast, Episode #15: An Interview with Daniel Sutherland

In this week’s episode, we explore the latest FOIA tussle between the FBI and ACLU over NSA and the dog-bites-man story of Larry Klayman losing another long-shot appeal. This Week in NSA focuses on the Bloomberg story claiming that the agency is exploiting the Heartbleed flaw. Kudos to NSA for managing to persuasively deny the thinly sourced and dubious story before the day’s news cycle was complete. Even so, the White House defensively rolls out a new policy on zero-days.  We chew on the critical question:  Can you win a Pulitzer for writing a false story if it prompts a new White House policy? Jason notes the largely unsurprising result in the Wyndham case and the FTC’s effort to lock Facebook and Whatsapp into their current privacy policies. And just to show that we don’t always harsh on the FTC, Jason describes the commission’s charges against a site that really lived up to its name – jerk.com. The European Court of Justice makes news, striking down parts of the data retention directive that have long distinguished Europe as a far less privacy-protective jurisdiction than the United States.  Maury Shenk, our European correspondent, has the analysis. Continuing a tutorial in class action tactics, Jason talks about the Target litigation being consolidated in Minnesota. The Justice Department and the FTC issue antitrust guidance designed to ease the fears of companies that sharing cybersecurity information will create antitrust liability. It doesn’t say anything that couldn’t have been said fourteen years ago – and was. I’d call it Groundhog Day II but I think that’s recursive. International cyberdiplomacy is slowly recovering from the Snowden leaks, though successes are still thin on the ground.  The US tries a creative (if rather handwringing) response to Iran’s DOS attacks on banks, and it tries candor (without much success) on China. Our special guest, Dan Sutherland, served under all four DHS secretaries and is now the chief lawyer for the DHS component charged with cybersecurity, biometrics, and telecommunications.  He comments on the antitrust agencies information-sharing guidance and conveys DHS’s latest thinking on how regulatory agencies will use the NIST cybersecurity framework to incentivize better network hygiene. Subscribe to the Cyberlaw Podcast here. We are also now on iTunes and Pocket Casts!