Steptoe Cyberlaw Podcast, Episode #33: An Interview with Orin Kerr

Our guest this week is Orin Kerr, professor of law at George Washington University and well-known scholar in computer crime law and internet surveillance.  Orin is our second return guest, and he demonstrates why, opining authoritatively on the future of NSA’s 215 program and the “mosaic” theory of fourth amendment privacy as well as joining in our news roundup. We begin the podcast with This Week in NSA, which again consists of news stories not written by Glenn Greenwald and the Snowdenistas. Most prominent are the stories claiming that Snowden’s leaks contributed to US intelligence failures against ISIS, the decision by Justice and DNI officials to support Sen. Leahy’s USA Freedom bill, and the release of a less-redacted version of Jack Goldsmith’s OLC opinion holding that the 215 program’s predecessor is not only legal but requires no FIS court approval, at least in time of war.  We find even more evidence that Snowden leaks harmed our ability to monitor ISIS, doubt that Sen. Leahy’s bill will pass before the elections, and speculate about whether OLC has a macro that inserts its plenary Article II article into every opinion it produces. Meanwhile, Yelp prevails in an extreme case claiming that the company suppresses bad reviews – but only for advertisers.  To which the Ninth Circuit says, “So what? It’s Yelp’s site.”  If only the aggrieved shopowner had sued under EU privacy law, which might require Yelp to forget those bad reviews. Speaking of the right to be forgotten, I explain what I’ve learned by actually filing censorship demands of my own.  The headline?  Google will suppress European search results for anyone anywhere.  You don’t have to be a European to have your peccadilloes forgotten.  The full post is here. And, speaking of foreign censorship of US information, LinkedIn is being accused of applying Chinese censorship to Chinese customers, even on LinkedIn’s U.S. site.  Three cases make a trend, and censoring the news that Americans read by threatening to hold their news suppliers liable abroad is definitely a trend. This week in data breaches:  Home Depot is accused, and Sen. Rockefeller calls on the company to respond.  Will “tokenization” solve the problem, at least for stores – or is that a solution only a lawyer could love?  We also look at the healthcare.gov hack and conclude that it’s been hyped. In other regulatory action, Google takes a big hit for kids’ in-app purchases and Verizon agrees to pay $7.4 million for sending inadequate notices to customers.  But the class action bar isn’t likely to get rich off either case. And Jason lays out the details of a Hasidic child abuse trial that has already produced not one but two noteworthy privacy rulings in New York.