In episode 84 our guest is Jack Goldsmith, Professor at Harvard Law School, a Senior Fellow at the Hoover Institution at Stanford University, and co-founder of the Lawfare blog.  Before coming to Harvard, he served as Assistant Attorney General, Office of Legal Counsel and Special Counsel to the Department of Defense.  From cyberespionage to the right to be forgotten and the end of the Safe Harbor, we explore the many ways in which a globalized economy has tied the US government’s hands in cybersecurity matters – and subjected the United States to extensive extraterritorial “soft power” at the hands of Europeans.

In the news roundup, the headline news is the continuing fallout from the ECJ’s attack on the Safe Harbor.  Michael Vatis and Maury Shenk bring us up to date.  Jason Weinstein explains why the latest convicted hacker thinks he should be a civil liberties hero/victim – and how weev has found yet another outlet for his bitterness at DOJ.

Michael Vatis explains DOD’s latest cybersecurity rules for contractors.  We conclude that DOD is boldly going where no agency has gone before – mandating cybersecurity with traditional command and control regulation.  It’s an experiment that many will be watching.

And in another turnabout, banks have discovered the joys of bringing a plaintiffs’ class action – against Target for its credit card breach.  We ask whether this means they’ll join the plaintiffs’ bar to oppose further class action reform.  Jason also explains the latest ruling in a data breach claim against Coca-Cola.

And the White House has made a decision on whether to seek legislation on law enforcement access to encryption.  The memo offered three options:

  1. Don’t seek legislation and brag about it.
  2. Don’t seek legislation and keep hoping for help from Silicon Valley.
  3. Continue the current course of not seeking legislation.

To no one’s surprise, the White House has chosen not to seek legislation.

Also to no one’s surprise but almost everyone’s embarrassment, Judge Leon is still stumping relentlessly after his white whale, the NSA section 215 program, crying “You can’t die!  I haven’t had a chance to kill you yet!”  It looks like the program won’t be the only thing put out of its misery by the end of November.

Download the eighty-fourth episode (mp3).