The Cyberlaw Podcast: Putting the 'F' in FISA: Bipartisan Extremism and the Road to 1997

By Stewart Baker
Tuesday, October 31, 2017, 12:30 PM

In this episode, Brian Egan and I deconstruct the endlessly proliferating “FISA 702 Reform” bills, from the irresponsible House Judiciary bill to the “I’ll see your irresponsible and raise you crazy” bipartisan extremist bill beloved of Sens. Ron Wyden and Rand Paul (and talk about truth in advertising: What else would you call a bill that takes us back to the pre-9/11 status quo but S.1997?). Even the relatively restrained Senate intelligence bill takes fire for its, ahem, “creative” approach to FBI searches of 702 data. Brian does not share my distaste for all of the options but agrees that the cornucopia of 702 proposals makes it even more unlikely that anything other than a straight-up short-term reauthorization can pass before the end of the year.

In other legislative news, CFIUS reform is also in the air, and Sen. John Cornyn's carefully scripted rollout has begun. In her podcast debut, Alexis Early unpacks this complex bill over the Committee on Foreign Investment in the United States. Need a one-word explanation? China. The bill tries to block all of the avenues China is believed to have traveled in its pursuit of U.S. technology over the last decade. We also discuss how the bill would remove the veneer of “voluntariness” from at least part of the CFIUS process, which could impact a range of filers—particularly U.S. technology companies seeking foreign investment.

Meanwhile, for those seeking confirmation that privacy is just another word for protecting privilege, Twitter is apparently eager to provide it. Last summer, even as criticism and warnings about Russian misuse of Twitter to divide Americans and “diss” Hillary Clinton rolled in, the Russians were busily deleting their phony posts, and Twitter was right there to help. The company told even independent researchers who had saved Russian posts that the researchers had to delete any post that Twitter was deleting (which seems to be anything that the Russians deleted). This of course made it hard to criticize Twitter’s policies on foreign government trolling, since the evidence was gone; the justification that Twitter offered was, naturally, privacy. Maybe the company’s privacy policy should come with a slogan: “Privacy: Good for you. Better for us.”

Of course, Twitter says that it has to force the deletion of inconvenient tweets because of EU data protection policy. Indeed, European exceptionalism on the privacy front was at the fore last week, with the European Parliament’s approval of a draft ePrivacy directive that law enforcement will hate, an unfavorable opinion on how many data protection authorities can regulate Facebook (clue: all of them), and an absolutely undecipherable explanation from the Article 29 working party of European restrictions on automated decision-making (My translation: “If you use AI in your business and we don’t like you, you’re toast”). Maury Shenk provides a less jaundiced summary of these developments.

We do quick hits on Kaspersky’s defense, which looks more like it was designed to embarrass the U.S. than to exonerate the company; on Microsoft’s eagerness to drop its gag-order lawsuit in response to a change in Justice Department policy; and on the FBI’s claim that encryption is defeating half of the phone searches it tries to conduct.

Our interview is with Chris Painter, the State Department’s top cyber diplomat under President Obama. He offers candid views about the Tillerson reorganization, which pushes his old office deeper into “deep State” (the State bureaucracy). He also assesses what went right and wrong for cyber diplomacy on his watch and what the U.S. should be doing going forward. Brian Egan referees as Chris and I have what the State Department might call a “frank and candid exchange of views.”

Mark your calendars for Nov. 7, when we will gather for a live taping of a special episode on Election Cybersecurity at our Dupont Circle offices here in D.C. To register, please visit the Events page of our website at steptoe.com.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com, or leave a message at +1-202-862-5785.

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