The Cyberlaw Podcast: News Roundup

By Stewart Baker
Tuesday, February 20, 2018, 6:54 PM

In our 204th episode of The Cyberlaw Podcast, the team bumbles forward without Stewart Baker, who is spending the week racing his offspring down mountain slopes somewhere in Utah. Brian Egan and begin by covering a few implications of from Friday—the legal theories of the case and what the indictment does and doesn’t cover—as well as the follow-on false statement indictment against a former associate of a major law firm. In an amazing convergence of viewpoints, everyone, from Presidents Obama and Trump to Brian and Jamil—agrees that Russia appears to be winning, and the U.S. is losing, on the topic of interference with U.S. elections.

At the same time, the state secretaries of state gathered in Washington last week to discuss cybersecurity and U.S. elections—coming in the face of a published by the Center forAmerican Progress on shortcomings in U.S. election-related cyber defenses. In light of these threats, we ponder whether paper ballots, or even the  “mail-only” approach that is operative in a few states, is better than an electronic ballot.

In other Russia-related news, Kaspersky turned to (literally) one of the oldest pages in the book—the Bill of Attainder clause in the U.S. Constitution—in of a provision in the NDAA that prohibits federal agencies from using Kaspersky products. Jamil posits that the case seems less frivolous than may appear at first blush, while Brian muses about the history of Bill of Attainder litigation in the United States.

Finally, Jamil and Brian discuss the U.S. and U.K. decision to and the continued trend in the Obama and Trump Administrations to publicly identify perpetrators of state-sponsored cyber attacks (along with the risks inherent in this approach). Notwithstanding the NotPetya attribution, as well as a on the increased economic costs of cyberattacks and on data breaches, we explain why we believe it to be unlikely that Congress will pass federal data breach/data notification legislation any time soon.

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The views expressed in this podcast are those of the speakers and do not reflect the opinions of the firm.