In episode 212 of The Cyberlaw Podcast, Stewart Baker is at RSA, and Brian Egan, Maury Shenk, and Pete Jeydel of Steptoe are joined by David Kris and Nate Jones of Culper Partners LLC to cover the good, the bad and the ugly of the week that was.
UK cyber issues: Brian, Maury, David and Nate discuss the US-UK-France weekend airstrikes against Syria’s chemical weapons program, and reported threats of Russian “cyber retaliation” against the UK. We also note the continued trends of intelligence disclosures (aiding the development of international norms?) reflected in last week’s speech by the GCHQ director condemning Russia over the Skripal attack and disclosing UK offensive cyber operations against ISIS.
David provides insights into the government’s proposed use of a US government “taint team” to conduct a privilege review of the materials seized during the FBI’s raid of Michael Cohen’s offices. Bottom line: (1) warrants to seize evidence from attorneys are relatively rare but not unprecedented, (2) President Trump’s and Mr. Cohen’s requests to conduct their own screening of the materials probably won’t fly, and (3) a scenario in which an independent special master oversees the review is quite possible (but has been delayed for the moment).
Maury discusses the latest in the Schrems data protection litigation against Facebook: last week’s unsurprising decision by the Irish high court to refer questions related to the EU Standard Contractual Clauses to the European Court of Justice. Maury explains why he remains skeptical that the EU court will invalidate the use of these clauses.
Pete explains why Treasury is probably considering its (very broad) options under the International Emergency Economic Powers Act in answering President Trump’s call for more restrictions on Chinese Investments.
And David and Nate discuss the latest in the encryption debates, including an FBI Inspector General’s report criticizing the FBI’s mishandled attempts to break the encryption of the San Bernadino shooter’s iPhone, and the latest in encryption/decryption litigation before the lower courts.
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