Category Archives: The Media

‘This Week in Law’ Podcast

I was one of the guests on Denise Howell’s and Mike Keyes’s This Week in Law — a two hour podcast on this week’s developments in technolaw and IP law. The other guest was David Levine, who fortunately knows a lot more about trade secrets than I do, as it was a busy week for those.

Anyway if you have a very long exercise session, the podcast awaits. And in some states you can get CLE for listening!

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Microsoft Sues to Kill or Reduce ECPA Gag Orders

Microsoft filed suit today seeking a judicial declaration that 18 U.S.C. § 2705(b) violates its First Amendment Rights, and the Fourth Amendment rights of the subjects of the orders.

I think this lawsuit is a Big Deal, and Microsoft has the right of it on moral grounds. On legal grounds it has a good arguable case, although the law is not so clear that I can call it a slam dunk. This excellent article by Steve Lohr in the NYT gives the outline, and quotes a soi-disant expert.

Perhaps the most interesting, if disturbing, fact is this one:

From September 2014 to March 2016, Microsoft received 5,624 federal demands in the United States for customer information or data. Nearly half — 2,576 — were accompanied by secrecy orders.

And of those secrecy orders, more than two-thirds contained no fixed end date. I.e. unless Microsoft were to go to court later to challenge them in individual proceedings, they orders would on their own terms last forever.

The text of Microsoft’s complaint is worth reading as it is very well done. Here’s the first paragraph:

Microsoft brings this case because its customers have a right to know when the government obtains a warrant to read their emails, and because Microsoft has a right to tell them. Yet the Electronic Communications Privacy Act (“ECPA”) allows courts to order Microsoft to keep its customers in the dark when the government seeks their email content or other private information, based solely on a “reason to believe” that disclosure might hinder an investigation. Nothing in the statute requires that the “reason to believe” be grounded in the facts of the particular investigation, and the statute contains no limit on the length of time such secrecy orders may be kept in place. 18 U.S.C. § 2705(b). Consequently, as Microsoft’s customers increasingly store their most private and sensitive information in the cloud, the government increasingly seeks (and obtains) secrecy orders under Section 2705(b). This statute violates both the Fourth Amendment, which affords people and businesses the right to know if the government searches or seizes their property, and the First Amendment, which enshrines Microsoft’s rights to talk to its customers and to discuss how the government conducts its investigations—subject only to restraints narrowly tailored to serve compelling government interests. People do not give up their rights when they move their private information from physical storage to the cloud. Microsoft therefore asks the Court to declare that Section 2705(b) is unconstitutional on its face.

Update: For an argument that courts will deny Microsoft’s facial challenge on the grounds that the claims can only be asserted ‘as applied’ — very much an emphasis of recent Supreme Court decisions disfavoring as facial challenges to statutes, see Jennifer Daskal at Just Security, A New Lawsuit from Microsoft: No More Gag Orders!. It’s more pessimistic than I would be, but not implausible.

Update2: Microsoft’s statement.

Posted in Civil Liberties, Law: Constitutional Law, Law: Free Speech, Law: Internet Law, The Media | Leave a comment

Great Interview at Brink

Robot Law: Preventing Serious—and Subtle—Threats, featuring yours truly.

Posted in Robots, The Media | Leave a comment

Robot Cars Don’t Need 100% Safety

Nice write-up by Nicholas Deleon in Why Google’s Self-Driving Car Crash Doesn’t Change Anything.

As I told him, I think it’s wrong to expect robot cars to be 100% safe; so having a Google self-driving car in a fender-bender is of no real significance. There are a lot of issues with self-driving cars, but their failure to be perfect is not in my opinion one of them. Indeed, until all cars on the road are controlled by compatible (note I said compatible, not centrally controlled!) systems, the interaction between, excuse the term, legacy cars and robotic cars — not to mention pedestrians, stray animals, and debris on the road — means accidents will happen.

As I told Delon, one issue is whether the robot car is (provably) safer than the average human. Another issue is who should pay when the robot car is at fault, wholly or partly, for the accidents. The law has not determined how to allocate responsibility between the passenger, the owner, the programmer, and the manufacturer. We could treat this as a straight-forward problem of product liability law, or we could be more creative. I’m thinking on it.

Posted in Robots, The Media | 1 Comment

Yahoo Does Apple v FBI

Yahoo! Politics has me on Apple and the slippery slope problem of government claiming powers to draf needed helpers under the All Writs Act.

Posted in Cryptography, Law: Constitutional Law, The Media | Leave a comment

On the Apple v FBI Case

Talking HeadThe government’s attempt to get Apple to build a bespoke operating system so they can brute force access to an iPhone without it erasing its data has led the media to some of us who were in the first round of the crypto wars. Today was my turn. A few seconds on CBS in the Morning, ink in a nice explainer by Steve Lohr in the New York Times. I also spoke to the LA Times and the Wall St. Journal, but I haven’t seen what if anything they made of it.

I presume they found me because I wrote the first US legal article on law and encryption: The Metaphor is the Key: Cryptography, the Clipper Chip and the Constitution. There’s also a shorter sequel that some find easier to read, It Came From Planet Clipper.

The Apple case potentially raises at least these major legal issues:

  1. To what extent the government can use the All Writs Act to compel people unrelated to a case to provide unwilling technical support–here, Apple says, 12-40 man-weeks of expert engineering–to the government’s efforts to disable a security system in order to effectuate a search warrant or similar court order;
  2. Whether ordering a firm to write code (here, a bespoke phone OS), is a form of compelled speech violating the First Amendment
  3. Whether ordering a firm to digitally sign that code (or anything else) is an impermissible form of compelled speech
  4. Whether if a court can issue this order requiring assistance to disable a security system without violating the Constitutions, it follows that Congress could also legislate to forbid people from building strong security systems that the government cannot break into unassisted — and, most critically, whether that would mean the government could forbid the deployment of strong cryptographic tools without back doors. (This last issue was the main subject of the two articles I linked to above. It’s not a simple question.)

Although the Apple issue likely will be decided on non-constitutional grounds, the parties are making a record on the constitutional issues with an eye to a set of appeals that could go as far as the Supreme Court. The issues are important and interesting, so the media is right to treat this as a big deal.

Posted in Cryptography, Law: Constitutional Law, Law: Criminal Law, Law: Privacy, The Media | 1 Comment

I’m Live on Twit.tv

Live link to twit.tv

Update: I’m archived now on This Week In Law.

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