Steptoe Cyberlaw Podcast, Episode #11: An Interview with Dan Novack

This week’s podcast covers the latest on NSA.  We mock EFF overriding one of the privacy protections in NSA’s metadata program by killing the 5-year retention limit.  We puzzle over the New York Times story on “raw take.” What exactly is the news there?  We also ask whether NSA and the telcos will end up going “Dutch,” as in Ruppersberger. And I brag about the results in my latest debate over Edward Snowden, who is starting to wear out his welcome with Americans. In other fallout from the NSA leaks, we note that Commerce announced its willingness to give up an oversight role for ICANN.  And members of the European Parliament start work on a data protection that they can’t finish before elections. Why? Because, one member of the Parliament explains, hating NSA should be popular with the “euroskeptics, racists, and homophobes” she expects to be elected to the next Parliament. So if you’re known by your enemies, maybe NSA is doing something right. And remarkably, NSA isn’t even the intelligence agency in the biggest political flap of the week.  We unpack the legal claims in the SSCI-CIA brouhaha. Turning to non-intelligence topics, the Silverpop case suggest that it may be harder to win a hacker-breach negligence case than some of us thought.  And the Target case gets more interesting.  It looks as though Target missed a chance to stop the exploit, probably because of information overload.  And I argue that the incident also shows the foolishness of Justice’s campaign against corporate self-help in cyberspace. Privacy groups want to block the Whatsapp deal on privacy grounds. Is this a promising new front for privacy campaigners or a peculiarity of the FTC’s dog’s-breakfast jurisdiction? We also touch on a few other stories:  the public’s first good look at Russia’s cyberespionage tools, Google starts encrypting search in China, Leon Panetta invokes “cyber Pearl Harbor” and it turns out we could lose power for 18 months if a handful of substations are successfully attacked. The interview features Dan Novack, a former big-firm litigator now serving as legal analyst at First Look, the Greenwald/Omidyar news service. Occasional fireworks break out.  Be sure to read his article “DOJ Still Ducking Scrutiny After Misleading Supreme Court on Surveillance,” which he mentions in the interview.