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Episode 394 of the Cyberlaw Podcast

Stewart Baker |

The Cyberlaw Podcast has decided to take a leaf from the (alleged) Bitcoin Bandits’ embrace of cringe rap. No more apologies. We’re proud to have been cringe-casting for the last six years. Scott Shapiro, however, shows that there’s a lot more to the bitcoin story than embarrassing social media posts. In fact, the government’s filing after the arrest of Ilya Lichtenstein and Heather Morgan paints a forbidding picture of how hard it is to actually cash out $4.5 billion in bitcoin. That’s what the government wants us to think, of course, but it’s persuasive nonetheless, and both Scott and David Kris recommend it as a read.

Like the Rolling Stones performing their greatest hits from 1965 in 2021, U.S. Senator Ron Wyden of Oregon is replaying his favorite schtick from 2013 – complaining that the government has an intelligence program that collects U.S. person data under a legal theory that would surprise most Americans. Based on the Privacy and Civil Liberties Oversight Board staff recommendations, Dave Aitel and David Kris conclude that this doesn’t sound like much of a scandal, but it may lead to new popup boxes on intel analysts’ desktops as they search their databases.

In an entirely predictable but still discouraging development, Dave Aitel points to persuasive reports from two forensics firms that an Indian government body has compromised the computers of a group of Indian activists and then used its access not just to spy on the activists but to load fake and incriminating documents onto their computers.

In the EU, meanwhile, crisis is drawing nearer over the EU General Data Protection Regulation (GDPR) and the European Court of Justice decision in the Schrems cases. David Kris covers a surprising trend. The Court may have been aiming at the United States, but its ruling is starting to hit European companies; they may soon have to choose between getting free Silicon Valley services and incurring serious GDPR liability. That’s the message in the latest French ruling that websites using Google Analytics are in breach of GDPR. Next to face the choice may be European publishers who rely on data-dependent advertising; the structure that supports such ads has seen its legality gravely undercut by the Belgian data protection authority.

Scott and I dig into the IRS’s travails in trying to use facial recognition to authenticate taxpayers seeking access to their records. I reprise my defense of face recognition in Lawfare. Nobody is going to come out of this looking good, Scott and I agree, but I predict that abandoning facial recognition technology is going to mean more fraud as well as more costly and lousier service for taxpayers.

I cover to the only field where Silicon Valley still seems to be innovating – new ways to tell conservatives that they should just die already. Airbnb has embraced the Southern Poverty Law Center, whose business model is smearing mainstream conservative groups as “hate” mongers. Airbnb told Michelle Malkin that her speech to a SPLC-designated “hate” group meant that she was forever barred from using Airbnb – and so was her husband. By my count that’s guilt by association three times removed. Equally remarkable, Facebook is now telling Bjorn Lomborg that he cannot repeat true facts if he’s using them to support the Wrong Narrative.  Silicon Valley isn’t in content moderation land any more: Truth is not a defense, and firms that control access to real things in real life are denying those things to people whose views they don’t like.

Scott and I unpack the EARN IT (Eliminating Abusive and Rampant Neglect of Interactive Technologies) Act, again reported out of committee to a chorus of boos from privacy NGOs. At the same time, anti-child-abuse campaigners aren’t waiting for EARN IT. A sex trafficking lawsuit against Pornhub has survived a section 230 challenge.

Download the 394th Episode (mp3)

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The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.

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