Steptoe Cyberlaw Podcast, Episode #42: An Interview with Orin Kerr

We share the program this week with Orin Kerr, a regular guest who knows at least as much as we do about most of these topics and who jumps in on many of them.  Orin, of course, is a professor of law at George Washington University and well-known scholar in computer crime law and Internet surveillance.

This week in NSA:  With NSA Director playing good cop in Silicon Valley, new GCHQ director Robert Hannigan seemed happy to play bad cop, releasing an op-ed saying that US tech companies were providing the “command-and-control networks of choice for terrorists and criminals” and would need to do a better job of cooperating with governments to combat terror and crime.  If nothing else, the speech is a hint to Silicon Valley that its clout in the Obama administration does not foretell success in fighting other governments’ surveillance goals.

And, with the election over, and it looks more likely than not that the GOP will end up with a 54-46 majority next year.  We surmise that this means no action on the USA Freedom Act (or Sen. Grassley’s substitute) until Spring 2015.

Finally, the DC Circuit heard argument in the appeal of Judge Leon’s famously exclamatory invalidation of NSA’s 215 metadata program.  As expected, Larry Klayman did nothing to help his case, and the panel was considerably more skeptical about the challenge than the Second Circuit panel that heard many of the same issues.  Our best guess from the arguments:  The Second Circuit decides that the program is inconsistent with section 215, the DC Circuit finds that the program is constitutional and that statutory issue has been waived, so there’s no split in the circuits until the Ninth Circuit rules, at which point the whole issue is cert-proof anyway because the statute has expired or been revised.

Talk about opening a can of worms.  The Supreme Court’s decision in Riley that cell phones can’t be searched without a warrant has now spawned fights about what the warrant should say, and how many limits it should set on what the police can look at.  The Nebraska Supreme Court has weighed in – but leaves the police more or less in limbo.

Whether the contents of a webmail account are protected from government search depends on the webmail provider’s terms of use.  Or so says the Southern District of New York, in a decision none of us can understand or really get behind.

Speaking of the Southern District of New York, prosecutors there may singlehandedly make more tech surveillance law than the rest of the country.  They’re fighting with a phone manufacturer to get help unlocking a suspect’s phone.

And a Virginia court has ruled – to our utter lack of surprise -- that suspects may be forced to apply their fingers to cellphones protected by fingerprint readers.  More interesting is whether they can be forced to enter “patterns” or tell the police which finger unlocks their phone (our view: no and no).

Google has finished its “right to be forgotten” road trip, and Americans’ freedom to read accurate information is on the block in Europe.  An official of the European Commission made clear that the Commission would not rest until it had imposed its link censorship regime on google.com and Google’s American users.  The administration’s response?  Crickets.

Data retention is making a comeback in Europe, as Sweden joins the UK in demanding continued retention despite a European Court of Justice ruling against the directive that originally led to retention requirements.

Is the financial industry worried enough about cybersecurity that it’s actually calling for more activist government action?  SIFMA’s latest call comes close.

We remind everyone that the Steptoe Cyberlaw Podcast welcomes feedback, either by email (CyberlawPodcast@steptoe.com) or voicemail (+1 202 862 5785).