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by Stewart Baker
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- May 30, 20251h 8m
The Digital Fourth Amendment with Orin Kerr
The Cyberlaw Podcast is back from hiatus – briefly! I've used the hiatus well, skiing the Canadian Ski Marathon, trekking through Patagonia, and having a heart valve repaired (all good now!). So when I saw (and disagreed with ) Orin Kerr's new book, I figured it was time for episode 502 of the Cyberlaw Podcast. Orin and I spend the episode digging into his book, The Digital Fourth Amendment: Privacy and Policing in Our Online World. The book is part theory, part casebook, part policy roadmap—and somehow still manages to be readable, even for non-lawyers. Orin's goal? To make sense of how the Fourth Amendment should apply in a world of smartphones, cloud storage, government-preserved Facebook accounts, and surveillance everywhere. The core notion of the book is "equilibrium adjustment"—the idea that courts have always tweaked Fourth Amendment rules to preserve a balance between law enforcement power and personal privacy, even as technology shifts the terrain. From Prohibition-era wiretaps to the modern smartphone, that balancing act has never stopped. Orin walks us through how this theory applies to search warrants for digital devices, plain view exceptions in the age of limitless data, and the surprisingly murky question of whether copying your files counts as a seizure. It's very persuasive, I say, if you ignore Congress's contribution to equilibrium. In some cases, the courts are simply discovering principles in the Fourth Amendment that Congress put in statute decades earlier. Worse, courts (and Orin) have too often privileged their idea of equilibrium over the equilibrium chosen by Congress, ignoring or implicitly declaring unconstitutional compromises between privacy and law enforcement that are every bit as defensible as the courts'. One example is preservation orders—those quiet government requests that tell internet providers to make a copy of your account just in case. Orin argues that's a Fourth Amendment search and needs a warrant, even if no one looks at the data yet. But preservation orders without a warrant are authorized by Congress; ignoring Congress's work should require more than a vague notion of equilibrium rebalancing, or so I argue. Orin is unpersuaded. We also revisit Carpenter v. United States, the 2018 Supreme Court decision on location tracking, and talk about what it does—and doesn't—mean for the third-party doctrine. Orin's take is refreshingly narrow: Carpenter didn't blow up the doctrine, but it did acknowledge that some records, even held by third parties, are just too revealing to ignore. I argue that Carpenter is the judiciary's Vietnam war – it has committed troops to an unwinnable effort to replace the third party rule with a doomed series of touchy-feely ad hoc rulings. That said, Orin's version of the decision, which deserves to be called the Kerr-penter doctrine, is more limited and more defensible than most of the legal (and judicial) interpretations over the last several years. Finally, we talk border searches, network surveillance, and whether the Supreme Court has any idea where to go next. (Spoiler: probably not.)
- Apr 22, 202449 min
World on the Brink with Dmitri Alperovitch
Okay, yes, I promised to take a hiatus after episode 500. Yet here it is a week later, and I'm releasing episode 501. Here's my excuse. I read and liked Dmitri Alperovitch's book, "World on the Brink: How America Can Beat China in the Race for the 21st Century." I told him I wanted to do an interview about it. Then the interview got pushed into late April because that's when the book is actually coming out. So sue me. I'm back on hiatus. The conversation in the episode begins with Dmitri's background in cybersecurity and geopolitics, beginning with his emigration from the Soviet Union as a child through the founding of Crowdstrike and becoming a founder of Silverado Policy Accelerator and an advisor to the Defense Department. Dmitri shares his journey, including his early start in cryptography and his role in investigating the 2010 Chinese hack of Google and other companies, which he named Operation Aurora. Dmitri opens his book with a chillingly realistic scenario of a Chinese invasion of Taiwan. He explains that this is not merely a hypothetical exercise, but a well-researched depiction based on his extensive discussions with Taiwanese leadership, military experts, and his own analysis of the terrain. Then, we dive into the main themes of his book -- which is how to prevent his scenario from coming true. Dmitri stresses the similarities and differences between the US-Soviet Cold War and what he sees as Cold War II between the U.S. and China. He argues that, like Cold War I, Cold War II will require a comprehensive strategy, leveraging military, economic, diplomatic, and technological deterrence. Dmitri also highlights the structural economic problems facing China, such as the middle-income trap and a looming population collapse. Despite these challenges, he stresses that the U.S. will face tough decisions as it seeks to deter conflict with China while maintaining its other global obligations. We talk about diversifying critical supply chains away from China and slowing China's technological progress in areas like semiconductors. This will require continuing collaboration with allies like Japan and the Netherlands to restrict China's access to advanced chip-making equipment. Finally, I note the remarkable role played in Cold War I by Henry Kissinger and Zbigniew Brzezinski, two influential national security advisers who were also first-generation immigrants. I ask whether it's too late to nominate Dmitri to play the same role in Cold War II. You heard it here first!
- Apr 11, 20241h 11m
Who's the Bigger Cybersecurity Risk – Microsoft or Open Source?
There's a whiff of Auld Lang Syne about episode 500 of the Cyberlaw Podcast, since after this it will be going on hiatus for some time and maybe forever. (Okay, there will be an interview with Dmitri Alperovich about his forthcoming book, but the news commentary is done for now.) Perhaps it's appropriate, then, for our two lead stories to revive a theme from the 90s – who's better, Microsoft or Linux? Sadly for both, the current debate is over who's worse, at least for cybersecurity. Microsoft's sins against cybersecurity are laid bare in a report of the Cyber Security Review Board, Paul Rosenzweig reports. The Board digs into the disastrous compromise of a Microsoft signing key that gave China access to US government email. The language of the report is sober, and all the more devastating because of its restraint. Microsoft seems to have entirely lost the security focus it so famously pivoted to twenty years ago. Getting it back will require a focus on security at a time when the company feels compelled to focus relentlessly on building AI into its offerings. The signs for improvement are not good. The only people who come out of the report looking good are the State Department security team, whose mad cyber skillz deserve to be celebrated – not least because they've been questioned by the rest of government for decades. With Microsoft down, you might think open source would be up. Think again, Nick Weaver tells us. The strategic vulnerability of open source, as well as its appeal, is that anyone can contribute code to a project they like. And in the case of <a title= "Original URL: https://urldefense.com/v3/__https:/www.wired.com/story/jia-tan-xz-backdoor/__;!!ApXA7kLm!1UfhP2XB7OY1fje8f5sJz6LcdK0a0yUjr5plXK4VWTYMdfi5kdVp-Te6Aryp-0PPeubBCAvNV0iso39O7a4pF2F0LmpYD1EI_hU$ Click to follow link." href= "https://nam12.safelinks.protection.outlook.com/?url=https%3A%2F%2Furldefense.com%2Fv3%2F__https%3A%2Fwww.wired.com%2Fstory%2Fjia-tan-xz-backdoor%2F__%3B!!ApXA7kLm!1UfhP2XB7OY1fje8f5sJz6LcdK0a0yUjr5plXK4VWTYMdfi5kdVp-Te6Aryp-0PPeubBCAvNV0iso39O7a4pF2F0LmpYD1EI_hU%24&data=05%7C02%7Ctanwilb%40iu.edu%7Cab3fbc13de714adc81be08dc5998a48f%7C1113be34aed14d00ab4bcdd02510be91%7C0%7C0%7C638483759336138944%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C0%7C%7C%7C&sdata=dCjwi68AVBSfW%2BBZ9OGGU52
- Apr 2, 20241h 1m
Taking AI Existential Risk Seriously
This episode is notable not just for cyberlaw commentary, but for its imminent disappearance from these pages and from podcast playlists everywhere. Having promised to take stock of the podcast when it reached episode 500, I've decided that I, the podcast, and the listeners all deserve a break. So I'll be taking one after the next episode. No final decisions have been made, so don't delete your subscription, but don't expect a new episode any time soon. It's been a great run, from the dawn of the podcast age, through the ad-fueled podcast boom, which I manfully resisted, to the market correction that's still under way. It was a pleasure to engage with listeners from all over the world. Yes, even the EU! As they say, in the podcast age, everyone is famous for fifteen people. That's certainly been true for me, and I'll always be grateful for your support – not to mention for all the great contributors who've joined the podcast over the years Back to cyberlaw, there are a surprising number of people arguing that there's no reason to worry about existential and catastrophic risks from proliferating or runaway AI risks. Some of that is people seeking clever takes; a lot of it is ideological, driven by fear that worrying about the end of the world will distract attention from the dire but unidentified dangers of face recognition. One useful antidote is the Gladstone Report, written for the State Department's export control agency. David Kris gives an overview of the report for this episode of the Cyberlaw Podcast. The report explains the dynamic, and some of the evidence, behind all the doom-saying, a discussion that is more persuasive than its prescriptions for regulation. Speaking of the dire but unidentified dangers of face recognition, Paul Stephan and I unpack a <a title= "https://nam12.safelinks.protection.outlook.com/?url=https%3A%2F%2Furldefense.com%2Fv3%2F__https%3A%2Fwww.nytimes.com%2F2024%2F03%2F27%2Ftechnology%2Fisrael-facial-recognition-gaza.html%3Fsmid%3Durl-share%26ugrp%3Dm%26unlocked_article_code%3D1.f00.zbA5.bJOEsDAWhWUf%26utm_source%3Dpocket_saves__%3B!!ApXA7kLm!1wAGMs6R9tZ7ytA6NHXhGpQdkz0eMcQqXGbm79Q_zkoZp4sGaKXJv7vF6WAMbND6-zvOS7eCymCB2ht15Q%24&data=05%7C02%7Ctanwilb%40iu.edu%7Ce715e43269f942e9b5f208dc52936b3c%7C1113be34aed14d00ab4bcdd02510be91%7C0%7C0%7C638476040318708100%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIj
- Mar 26, 202446 min
The Fourth Antitrust Shoe Drops, on Apple This Time
The Biden administration has been aggressively pursuing antitrust cases against Silicon Valley giants like Amazon, Google, and Facebook. This week it was Apple's turn. The Justice Department (joined by several state AGs) filed a gracefully written complaint accusing Apple of improperly monopolizing the market for "performance smartphones." The market definition will be a weakness for the government throughout the case, but the complaint does a good job of identifying ways in which Apple has built a moat around its business without an obvious benefit for its customers. The complaint focuses on Apple's discouraging of multipurpose apps and cloud streaming games, its lack of message interoperability, the tying of Apple watches to the iPhone to make switching to Android expensive, and its insistence on restricting digital wallets on its platform. This lawsuit will continue well into the next presidential administration, so much depends on the outcome of the election this fall. Volt Typhoon is still in the news, Andrew Adams tells us, as the government continues to sound the alarm about Chinese intent to ravage American critical infrastructure in the event of a conflict. Water systems are getting most of the attention this week. I can't help wondering how we expect the understaffed and underresourced water and sewage companies in this country to defeat sophisticated state-sponsored attackers. This leads Cristin and i to a discussion of how the SEC's pursuit of CISO Tim Brown and demands for more security disclosures will improve the country's cybersecurity. Short answer: It won't. Cristin covers the <a title= "https://nam12.safelinks.protection.outlook.com/?url=https%3A%2F%2Furldefense.com%2Fv3%2F__https%3A%2Fwww.axios.com%2Fpro%2Ftech-policy%2F2024%2F03%2F20%2Fsenate-plots-next-moves-on-tiktok%3Futm_source%3Dpocket_saves__%3B!!ApXA7kLm!3HaLtB_tWVQ8iLqgAACyTtcWl0JWHfUEpIu8atFHLWf55PDOOOvTRidNSPB7KQr-eN7Mnn7zljmVXvk%24&data=05%7C02%7Ctanwilb%40iu.edu%7C45a28beb58954d215da808dc4d3ad220%7C1113be34aed14d00ab4bcdd02510be91%7C0%7C0%7C638470162241880279%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMz
- Mar 19, 20241h 0m
Social Speech and the Supreme Court
The Supreme Court is getting a heavy serving of first amendment social media cases. Gus Hurwitz covers two that made the news last week. In the first, Justice Barrett spoke for a unanimous court in spelling out the very factbound rules that determine when a public official may use a platform's tools to suppress critics posting on his or her social media page. Gus and I agree that this might mean a lot of litigation, unless public officials wise up and simply follow the Court's broad hint: If you don't want your page to be treated as official, simply say up top that it isn't official. The second social media case making news was being argued as we recorded. Murthy v. Missouri appealed a broad injunction against the US government pressuring social media companies to take down posts the government disagrees with. The Court was plainly struggling with a host of justiciability issues and a factual record that the government challenged vigorously. If the Court reaches the merits, it will likely address the question of when encouraging the suppression of particular speech slides into coerced censorship. Gus and Jeffrey Atik review the week's biggest news – the House has passed a bill to force the divestment of TikTok, despite the outcry of millions of influencers. Whether the Senate will be quick to follow suit is <a title= "https://nam12.safelinks.protection.outlook.com/?url=https%3A%2F%2Furldefense.com%2Fv3%2F__https%3A%2Fwww.washingtonpost.com%2Fpolitics%2F2024%2F03%2F14%2Fsix-takeaways-house-tiktok-vote-shifts-action-senate%2F%3Futm_source%3Dpocket_saves__%3B!!ApXA7kLm!3EZR19VzBG8SJkhqfpdjEj-U-zA08Rkn6IxZvmIIsZMB3iz0yc89-_BDWVouuKMnZ9XjgC-6WbCDnfY%24&data=05%7C02%7Ctanwilb%40iu.edu%7Cd17b1b4227ec4a5f6b7e08dc47cb6608%7C1113be34aed14d00ab4bcdd02510be91%7C0%7C0%7C638464186126857051%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C0%7C%7C%7C&sdata=kVLvJPomt1TNW%2FvRJ2BsA8M1dvwm%2B8zhhV5T3uOl%2BcY%3D&reserved=0" href= "https://nam12.safelinks.protection.outlook.com/?url=https%3A%2F%2Furldefense.com%2Fv3%2F__https%3A%2Fwww.washingtonpost.com%2Fpolitics%2F2024%2F03%2F14%2Fsix-takeaways-house-tiktok-vote-shifts-action-senate%2F%3Futm_source%3Dpocket_saves__%3B!!
- Mar 14, 202431 min
Preventing Sales of Personal Data to Adversary Nations
This bonus episode of the Cyberlaw Podcast focuses on the national security implications of sensitive personal information. Sales of personal data have been largely unregulated as the growth of adtech has turned personal data into a widely traded commodity. This, in turn, has produced a variety of policy proposals – comprehensive privacy regulation, a weird proposal from Sen. Wyden (D-OR) to ensure that the US governments cannot buy such data while China and Russia can, and most recently an Executive Order to prohibit or restrict commercial transactions affording China, Russia, and other adversary nations with access to Americans' bulk sensitive personal data and government related data. To get a deeper understanding of the executive order, and the Justice Department's plans for implementing it, Stewart interviews Lee Licata, Deputy Section Chief for National Security Data Risk.
- Mar 13, 202456 min
The National Cybersecurity Strategy – How Does it Look After a Year?
Kemba Walden and Stewart revisit the National Cybersecurity Strategy a year later. Sultan Meghji examines the ransomware attack on Change Healthcare and its consequences. Brandon Pugh reminds us that even large companies like Google are not immune to having their intellectual property stolen. The group conducts a thorough analysis of a "public option" model for AI development. Brandon discusses the latest developments in personal data and child online protection. Lastly, Stewart inquires about Kemba's new position at Paladin Global Institute, following her departure from the role of Acting National Cyber Director.
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About The Cyberlaw Podcast
The Cyberlaw Podcast is a weekly interview series and discussion offering an opinionated roundup of the latest events in technology, security, privacy, and government. It features in-depth interviews of a wide variety of guests, including academics, politicians, authors, reporters, and other technology and policy newsmakers. Hosted by cybersecurity attorney Stewart Baker, whose views expressed are his own.
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