The Week That Was: All of Lawfare in One Post

Benjamin Wittes sat down with Roger Parloff on the Lawfare Podcast to discuss the sentencing of Elmer Stewart Rhodes III and Kelly Meggs, two Oath Keepers leaders who were convicted of seditious conspiracy in connection with the Jan. 6 insurrection. Rhodes got 18 years, and Meggs got 12. They discussed what this means for future Oath Keeper sentencing, what it means for Proud Boy sentencing, whether we can finally begin to predict what Jack Smith may be up to regarding Jan. 6 prosecutions, and more:

Parloff offered an overview of the nine Oath Keepers’ individual roles in the Jan. 6 seditious conspiracy in light of the U.S. government’s request for terror-enhanced sentences.

On the Lawfare Podcast, Wittes sat down with Scott R. Anderson, Alan Rozenshtein, and Quinta Jurecic to discuss the Supreme Court’s recent opinions in Taamneh v. Twitter and Gonzalez v. Google, the future of Section 230, and more:

Jack Hoover analyzed the Supreme Court’s opinions in Twitter v. Taamneh and Gonzalez v. Google. He argued that the court’s opinion has effectively rewritten the Justice Against Sponsors of Terrorism Act (JASTA) by minimizing its core mechanism—releasing litigants from the strict precedent set in Halberstam v. Welch.

Bruce Brown and Gabe Rottman analyzed the Justice Department’s regulation prohibiting the use of subpoenas, search warrants, and court orders to demand records from members of the press. They discussed the implications for reports and national security, and outlined possible new fronts for controversy and contestation.

Shalini Bhargava Ray assessed the state of the Biden administration’s replacement for Title 42—the Trump-era rule that allowed the expulsion of unauthorized noncitizens seeking to enter the U.S. during the COVID-19 pandemic. Ray writes that the new rule aims to reduce asylum-seekers’ reliance on unauthorized entry but faces practical and legal hurdles.

Olivia B. Hoff, Angela Nguyen, and Derek Webber reviewed the facts of two upcoming Supreme Court cases that consider the constitutionality of government officials blocking citizens from private social media accounts that convey vital information.

Justin Sherman analyzed the Federal Trade Commission’s (FTC) recent move to fine fertility tracking app Premom under the FTC’s Health Breach Notification rule. The FTC accuses Premom of having shared users’ unencrypted health data with third parties and geolocation data with Chinese companies. 

Avery Schmitz shared a filing initiating TikTok’s lawsuit against the state of Montana as a result of the state’s ban on the platform. The company alleges that the ban is an unconstitutional restriction on a forum for free speech.  

Kevin Yam and Thomas Kellogg outlined the Hong Kong government’s amendment of the special administrative region’s Legal Practitioners Ordinance (LPO) to bar overseas lawyers from participating in national security cases. They discussed how the amendment harms the state of human rights, rule of law, and democratic institutions in Hong Kong.

Daniel Byman, Chongyang Gao, Chris Meserole, and V. S. Subrahmanian considered constructive uses of deepfakes by democratic governments, and how certain safeguards—namely, a Vulnerabilities Equities Process similar to that in the cyber realm—could guide their effective and sparing application.

Annie Antón and Olivia Mauger discussed newfound concerns regarding the United States’s dependency on China for drone technology. They considered how amendments to existing legislation could help address the dependency, and put forward the CHIPS Act as a model for new legislation.

Eugenia Lostri shared an advisory from the Cybersecurity and Infrastructure Security Agency—in cooperation with domestic and international partner agencies—informing of tactics, techniques, and procedures of the Chinese state-sponsored cyber actor Volt Typhoon.

Sean O’Brien, Scott Shapiro, and Wittes shared a recording of Lawfare’s first class—on hacking and cybersecurity. Over the coming weeks, they will be sharing the rest of the course with the general public.

Jack Goldsmith sat down with Shapiro on the Lawfare Podcast to discuss his new book, “Fancy Bear Goes Phishing: The Dark History of the Information Age, in Five Extraordinary Hacks.” They discussed the lessons of the five hacks, including the limitations of technology in solving cybersecurity problems the importance of the human dimension in the field, and why we shouldn’t panic about the state of cyber insecurity:

On Rational Security, Anderson, Jurecic, and Rozenshtein reunited to celebrate Rozenshtein’s birthday and gradual decline, and to talk over the week’s big national security news. This week’s topics included President Biden’s decision to greenlight the transfer of F-16s to Ukraine, TikTok’s legal challenge to a ban on the platform in Montana, and the release of Special Counsel John Durham’s report on his investigation into the origins of the Trump-Russia FBI investigation:

In the latest installment of Lawfare’s foreign policy essay series, Melanie W. Sisson argued that in the age of great power competition, the Biden administration has demonstrated a predilection for military solutions, at the expense of diplomatic and economic cooperation.

On the Lawfare Podcast, Anderson sat down with Patrick Weil to discuss how psychology can inform executive decision making, informed by Weil’s most recent book, which recounts journalist William Bullitt’s psychoanalysis of former President Woodrow Wilson:

And on the Lawfare Podcast, Goldsmith sat down with Jeffrey Toobin to discuss his new book, “Homegrown: Timothy McVeigh and the Rise of Right-Wing Extremism.” They discussed the new information his book draws on concerning McVeigh’s motivations and trial strategy, Attorney General Merrick Garland's consequential role in the McVeigh trial, and the long-tail impact of the trial on right-wing domestic terrorism in the United States, including the Jan. 6 attack on Congress:

And that was the week that was.