Steptoe Cyberlaw Podcast, Episode #17: An Interview with Elana Broitman and Shawn Cooley

We begin the podcast with This week in NSA, but how long that feature will survive is in doubt. Because what’s most newsworthy this week is that there was practically no news about NSA.  Or at least no new scandal stories.  The principal new release came from the US government and consisted of a FISA court ruling that took apart the only decision declaring NSA’s section 215 metadata program illegal – Judge Leon’s overexcited and overpunctuated opinion in Klayman. The top story this week, judging by news coverage, is the claim that the FCC is gutting net neutrality.  But it turns out that there may be less to that story than the press coverage suggests.  In other press criticism, Jason Weinstein and Michael Vatis deconstruct the New York Times’ long story suggesting that the FBI may have used Anonymous to help compromise foreign nations’ networks.  Since other countries have been “turning” their criminal hackers to patriotic duty for years, the real news may be that the US is late to the party. It’s a common trope among techno-libertarians that information technology requires that all existing laws be rethought and made more privacy protective.  And that’s the heart of their argument in a case to be argued this week in the Supreme Court – surely the first, our panel concludes, to turn on the availability of “Faraday bags.”  Speaking of Supreme Court cases on technology questions, Stephanie Roy and I do a quick tour of the Aereo case – and take bets on whether the Court’s argument schedule dooms the case to irrelevance or error. How is DHS’s regulation of cybersecurity like Yale’s Skull and Bones fraternity?  Stephen Heifetz explains.  And Magistrate Facciola returns for another 15 minutes of fame, getting heavy coverage for his approach to warrants, just as DOJ finds a way to appeal his latest ruling. And in a first for the podcast, we interview two government CFIUS experts on how the foreign investment review process actually functions inside their agencies.  Elana Broitman, a deputy assistant secretary at DOD, is responsible for reviewing the health of the defense industry, making investments where necessary to preserve capabilities and reviewing mergers for both antitrust and CFIUS.  And Shawn Cooley manages DHS’s participation in CFIUS as well as Team Telecom, which performs a CFIUS-style review of FCC license applications.  Together they walk us through their agencies’ approach to investment, mitigation, and national security.  A must-listen for government and private sector CFIUS buffs!