Steptoe Cyberlaw Podcast: The Europocrisy Prize Edition

European hypocrisy on data protection is a lot like the weather. Everyone complains about it but no one does anything about it. Until today.

In episode 120, we announce the launch of the Europocrisy Prize. With the support of TechFreedom, we’re seeking tax deductible donations for a prize designed encourage the proliferation of Schrems-style litigation, but with a twist. We’ll award the prize to anyone who brings complaints that force Europe to apply the same human rights and data export standards to Russia, China, and Saudi Arabia as it applies to the US. More on the prize here.

We’re inspired to this announcement, because as Katie Cassel tells us in the news roundup, the data protection commissioner in Hamburg is hot-dogging on the privacy issue, and with relish. He has imposed fines on US companies for the offense of being caught by surprise when the Safe Harbor went down. Naturally, as far as we can tell, no similar cases have been launched against Russia, China, or any of the other countries that never even bothered to negotiate over privacy with the EU. The Europocrisy Prize, though, should go a long way to even the score.

We’re joined for the news roundup by Paul Rosenzweig of Red Branch Consulting, and he clues us in on the fight over ICANN’s future now being waged in Congress. Meanwhile, Alan Cohn explains why standing is such a high threshold for data breach plaintiffs, leading us to muse on exactly how much harm we can show from the disclosure of our naked pictures on the internet (in contrast to viewers, for whom injury may be presumed).

I highlight a workmanlike opinion from Judge Doumar on the FBI’s remote hacking of child porn aficionados. I also thank Sen. Cornyn and others on the Judiciary Committee for exposing just how little privacy groups care about ECPA reform. Sen. Cornyn has offered an amendment that would give back to the FBI the NSL access they had in 2008 to electronic communications transactions records. In order to keep Sen. Cornyn’s amendment off their reform bill, they’ve apparently ditched the whole bill.

In other privacy misrepresentation news, the UK press is full of headlines claiming that the “controversial” Investigatory Powers Act is moving forward “despite hacking and snooping fears.” Clue for the press: When the House of Commons vote to send a bill to the House of Lords is 444 to 69, calling it “controversial” just makes you look stupid and ideological. Most significantly, the bill goes out of its way to make clear that, if Apple makes the same arguments in the UK that it made against the FBI, it will lose. Tim Cook’s publicity campaign is really paying dividends, eh?

Katie explains the US Justice Department’s proposal to modify US law and streamline the production of electronic evidence to foreign governments. If they do that without extracting an end to EU data export restraints, the DOJ’s license to practice diplomacy should be revoked.

In other news, the French government has convicted Uber and two of its executives of failing to show sufficient respect to French officialdom. And the right to be forgotten turns out to be unworkable (who could have foreseen that!?).

Finally, we poll DHS alumni on whether the department’s cybersecurity organization, NPPD, should be raised to the status of a full-blown DHS component. Suzanne Spaulding will be pleased with the answer.

Note: Our interview with Rep. Will Hurd was delayed at the last moment, so we’re releasing it separately from the episode 120 news roundup.

As always, the Cyberlaw Podcast welcomes feedback. Send email to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.

Download the 120^th episode (mp3).

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The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.