The Cyberlaw Podcast

The Cyberlaw Podcast: Mirror-Image Decoupling

By Stewart Baker
Tuesday, May 5, 2020, 6:45 PM

We begin with a new US measure to secure its supply chain for a critical infrastructure – the bulk power grid. David Kris unpacks a new Executive Order restricting purchases of foreign equipment for the grid.

Nick Weaver, meanwhile, explains the remarkable extent of surveillance built into Xiaomi phones and questions the company’s claim that it was merely acquiring pseudonymous ad-related data like others in the industry.

It wouldn’t be the Cyberlaw Podcast if we didn’t wrangle over mobile phones and the coronavirus. Mark MacCarthy says that several countries – Australia, the UK, and perhaps France – are deviating from the Gapple model for using phones for infection tracing. Several have bought in. India, meanwhile, is planning a much more government-driven approach to using phone apps to combat the pandemic.

Mark ventures into even more contested territory in response to an article in The Atlantic by Jack Goldsmith and Andrew Woods, who argue that China has won the debate with John Perry Barlow over whether the Internet will be a force for free speech. Mark and I more or less agree, which sends me off on a rant about the growing self-confidence and ham-handedness of Big Tech as they get comfortable in their role as Guardians of What You Can’t Say on the Internet. Things you can’t say include plausible arguments about the still highly unsettled question of how best to deal with COVID-19 and descriptions of treatment options that have been entertained by President Trump without establishment approval, not to mention “unverified” statements (not, notably, false ones) that could cause social unrest. Just reading such things, it turns out, will lead at least Facebook to track you down and tell you that it noticed and wants to correct your flirtation with thoughtcrime – a practice that earned it praise from Rep. Adam Schiff.

Nick and I note the difficulty Facebook is having getting out of FOSTA cases in Texas, and I ask why FOSTA hasn’t already spelled doom for end-to-end encryption since it basically does what the EARN IT Act does, and all right-thinking Americans have been told that EARN IT is The End of End-to-End Encryption.

David explains why Amazon is facing tough new scrutiny from both parties: A Wall Street Journal article that questioned the accuracy of Amazon testimony before Congress has turned into claims of perjury, a demand that Jeff Bezos testify, and suggestions that the administration open a criminal antitrust probe.

“You can’t decouple from me! I’m decoupling from you!” That’s the sentiment from China anyway as they push forward with their own remarkably familiar supply chain security regulations. David explains that while the rules are similar to those in the United States, they’re tougher and more likely to be implemented in a slow, inexorable way.

Download the 314th Episode (mp3).

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