We start 2017 the way we ended 2016, mocking the left/lib bias of stories about intercept law. Remember the European Court of Justice decision that undermined the UK’s new Investigatory Powers Act and struck down bulk data retention laws around Europe? Yeah, well, not so much. Maury Shenk walks us through the decision and explains that it allows bulk data retention to continue for “serious” crime, which is really the heart of the matter.
We can’t, of course, resist an analysis of the whole Russian election interference sanctions brouhaha. The FBI/DHS report on Russian indicators in the DNC hack is taking on water, and its ambiguities have not been helped by a Washington Post article on alleged Russian intrusion into Vermont Yankee’s network. That story had to be walked way back, from an implicit attack on the electric grid to an apparently opportunistic infection of one company laptop. No one is surprised that there’s an increasingly partisan split over who’s going to answer the phone now that the 1980s really have called to get their foreign policy back.
Meredith Rathbone walks us through the revamp of the Obama Administration’s cyber sanctions in an attempt to address election meddling. And we manage to find a legal twist to the new sanctions on the FSB. Turns out that large numbers of US tech firms have to deal with the FSB, not as a buyer of services but as a regulator, both of encryption and intercepts inside Russia. If the sanctions prohibit dealing with FSB as a regulator, Maury reports, they could end up imposing unintentionally broad restrictions on a lot of US companies doing business in Russia.
Meredith also updates us on the Wassenaar effort to control exports of “intrusion software” – which some European governments seem to want to regulate in a way that does maximum damage to cybersecurity. The overreaching was blunted in a recent Wassenaar meeting, but not nearly as much as the US government – and industry – had hoped. The issue won’t go away, but it will soon become an appropriate job for the author of “The Art of the Deal.”
Finally, Jennifer Quinn-Barabanov takes us on a tour of the dirtier back streets of privacy class action practice – otherwise known as cy pres awards and their challengers. It sounds like “genteel corruption” to me, but you be the judge.