More National Security Economic Regulation on Congress’s Docket

This episode of the Cyberlaw Podcast kicks off with the sudden emergence of a serious bipartisan effort to impose new national security regulations on what companies can be part of the U.S. Information Technology and content supply chain. Spurred by a stalled Committee on Foreign Investment in the United States negotiation with TikTok, Michael Ellis tells us, a dozen well-regarded Democrat and Republican senators have joined to endorse the Restricting the Emergence of Security Threats that Risk Information and Communications Technology Act, which authorizes the exclusion of companies based in hostile countries from the U.S. economy. The administration has also jumped on the bandwagon, making the adoption of some legislation more likely than in the past.  

Jane Bambauer takes us through the district court decision upholding the use of a “geofence warrant” to identify January 6th rioters. We end up agreeing that this decision (and the context) turned out to be the best possible result for the Justice Department, silencing the usual left-leaning doubters about law enforcement technological adaptation. 

Just a few days after issuing a cybersecurity strategy that calls for more regulation, the administration is delivering what it called for. Transportation Security Administration (TSA) has issued emergency cybersecurity orders for airports and aircraft operators that, I argue, take the regulatory framework from a few baby steps to a plausible set of minimum requirements. Things look a little different in the water and sewage sector, where the regulator is the Environmental Protection Agency (EPA)—not known for its cybersecurity expertise—and the authority to regulate is grounded if at all in very general legislative language. To make the task even harder, EPA is planning to impose its cybersecurity standards using an interpretive rule against a background in which Congress has done just enough cybersecurity legislating to undermine the case for a broad interpretation. 

Jane explores the story that Google was deterred from releasing its impressive AI technology by fear of bad press. That leads us to a meditation on politics inside companies with a guaranteed source of revenue. I offer hope that Google’s fears about politically incorrect AI will infect Chinese tech firms.

Jane and I reprise the debate over the United Kingdom’s Online Safety Act and end-to-end encryption, which leads to a poli-sci tour of European policymaking institutions. 

The other cyber and national security news in Congress is the ongoing debate over renewal of section 702 of the Foreign Intelligence Surveillance Act (FISA), where it appears that the FBI scored an own-goal. Michael reports that an FBI analyst did unauthorized searches of the 702 database for intelligence on one of the House intelligence committee’s moderates, Rep. Darin LaHood, R-Ill. Details are sketchy, Michael notes, but the search was disclosed by Rep. LaHood, and it is bound to have led to harsh questioning during the FBI director’s classified testimony, Meanwhile, at least one member of the President’s Civil Liberties and Oversight Board is calling for what could be a crippling “reform” of 702 database searches. 

Jane and I unpack the controversy surrounding the Federal Trade Commission’s investigation of Twitter’s compliance with its consent decree. On the law, Elon Musk’s Twitter is in trouble. On the political front, however, they are more evenly matched. Chances are, both parties are overestimating their own strengths, which could foretell a real donnybrook.

Michael assesses the stories saying that the Biden administration  is preparing new rules to govern outbound investment in China. He is skeptical that we’ll see heavy regulation in this space.

In quick hits,  

• Jane explains the 9th Circuit decision saying that Twitter can be prohibited from publishing a full report on how many FBI probes it answered

• Jane and I puzzle over reports that a Colorado Catholic group bought app data to track gay priests.

Download 448th Episode (mp3)

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