The Cyberlaw Podcast

Steptoe Cyberlaw Podcast, Episode #29: An Interview with Orin Kerr

By Stewart Baker
Tuesday, July 22, 2014, 2:24 PM

Our guest this week is noted computer law guru Orin Kerr, and the podcast is a deep dive into technology and law.

This Week in NSA:  Snowden claims without substantiation that NSA employees are passing naked pix around.  And Greenwald’s venture reports that GCHQ has developed the ability to send spam and to rig web polls.  It’s a true Dr. Evil moment.  What will they think of next – tools that write linkbait article titles? Really, you won’t believe how this Glenn Greenwald story will break your heart!

Well, that was fast. Last week the UK government announced that it was pursuing legislation ensuring that data retention would continue and ending legal challenges by US companies to the scope of UK investigative powers.  This week, the proposal has passed both houses of Parliament.  It is now law.

Advocates of the right to be forgotten also want you to forget about how the censorship will work.  They successfully pressured Google not to tell users when their search results are bowdlerized.  Now they’re pressuring Google not to tell content owners when their links are dropped down the memory hole. They also want to make sure the censorship regime applies to the United States and Google’s .com engine.  As the Chinese government has already taught us, it’s not enough to censor Internet news; you also have to censor Internet news about the censorship of Internet news.  Come to think of it, the Chinese also demand that Internet companies self-censor in response to vague hints from regulators, and now so do the Europeans. Really, if the Chinese had a business method patent on Internet censorship, they could sue Europe for infringing.

And, speaking of privacy law abuses, the Veterans Administration finds that the best way to prevent whistleblowers from complaining about mistreatment of patients is to declare that talking about patient’s mistreatment is a violation of patient privacy.  Lois Lerner’s hard drive also makes an appearance.

The FBI says it’s worried about driverless Google getaway cars.  Of course you’d have to hack them to go faster than a golf cart.  Which raises the question:  Would hacking a car violate the CFAA?  The DMCA?  I ask the experts.

I wouldn’t ordinarily recommend the FBI affidavits that accompany indictments as reading material, but Agent Noel Neeman’s affidavit about Chinese cyberespionage tactics and motivations is remarkably entertaining – and instructive.   

In other news, it sure looks like the movement of class action privacy lawyers to West Virginia will begin in Illinois.  And to the surprise of the entire Internet, other than anyone familiar with actual law, the Massachusetts high court declares that, yes, you really can be forced to decrypt your files if the government already knows they’re yours.

Finally, with a critical mass of computer crime lawyers on the show, the four of us perform the lawyer equivalent of speed dating, covering most of the hot topics in technology and law, including the Microsoft search warrant case, the future of the third party doctrine, the evergreen question whether the Computer Fraud and Abuse Act is violated by those who exceed their authorized network access, and the prospects for legislation changing the CFAA or ECPA reform.