Administration Fails Forward on China Chip Exports

This episode of the Cyberlaw Podcast begins with the administration’s aggressive new rules on chip exports to China. Practically every aspect of the rules announced just eight months ago was sharply tightened, Nate Jones reports. The changes are so severe, I suggest, that they make the original rules look like a failure that had to be overhauled to work.

Much the same could be said about the Biden administration’s plan for an executive order on AI regulation that Chessie Lockhart thinks will  focus on government purchases. As a symbolic expression of best AI practice, procurement focused rules make symbolic sense. But given the current government market for AI, it’s hard to see them having much bite.

If it’s bite you want, Nate says, the EU has sketched out what appears to be version 3.0 of its AI Act. It doesn’t look all that much like Versions 1.0 or 2.0, but it’s sure to take the world by storm, fans of the Brussels Effect tell us. I note that the new version includes plans for fee-driven enforcement and suggest that the scope of the rules is already being tailored to ensure fee revenue from popular but not especially risky AI models.

Jane Bambauer offers a kind review of  Marc Andreessen’s “‘Techno-Optimist Manifesto”.  We end up agreeing more than we disagree with Marc’s arguments, if not his bombast. I attribute his style to a lesson I once learned from mountaineering.

Chessie discusses the Achilles heel of the growing state movement to require that registered data brokers delete personal data on request. It turns out that a lot of the data brokers, just aren’t registering.

The Supreme Court, moving with surprising speed at the Solicitor General’s behest, has granted cert and a stay  in the jawboning case, brought by Missouri among other states to stop federal agencies from leaning on social media to suppress speech the federal government disagrees with. I note that the SG’s desperation to win this case has led it to make surprisingly creative arguments, leading to yet another Cybertoonz explainer.

Social media’s loss of public esteem may be showing up in judicial decisions. Jane reports on a California decision allowing a lawsuit that seeks to sue kids’ social media on a negligence theory for marketing an addictive product. I’m happier than Jane to see that the bloom is off the section 230 rose, but we agree that suing companies for making their product’s too attractive may run into a few pitfalls on the way to judgment. I offer listeners who don’t remember the Reagan administration a short history of the California judge who wrote the opinion.

And speaking of tort liability for tech products, Chessie tells us that Chinny Sharma, another Cyberlaw podcast stalwart, has an article in Lawfare confessing some fondness for products liability (as opposed to negligence) lawsuits over cybersecurity failures. 

Chessie also breaks down a Colorado Supreme Court decision approving a keyword search for an arson-murder suspect. Although played as a win for keyword searches in the press, it’s actually a loss. The search results were deemed admissible only because the good faith exception excused what the court considered a lack of probable cause. I award EFF the “sore winner” award for its whiny screed complaining that, while it agree with EFF on the principle, the court didn’t also free the scumbags who burned five people to death.

Finally,  Nate and I explain why the Cybersecurity and Infrastructure Security Agency won’t be getting the small-ball cyber bills through Congress that used to be routine. CISA overplayed its hand in the misinformation wars over the  2020 election, going so far as to consider curbs on “malinformation” – information that is true but inconvenient for the government. This has led a lot of conservatives to look for reasons to cut CISA’s budget. Sen. Rand Paul (R-Ky.)  gets special billing.

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