Recent Academic Papers and Reports of Interest

An FDA for Algorithms (pdf; 29 pages; March 15, 2016) – Andrew Tuft

The Fourth Amendment in the Information Age (April 27, 2016) – Robert Litt (General Counsel, Office of the Director of National Intelligence)

The Fourth Amendment in the Coming Drone Age (pdf; 29 pages; December 3, 2015) – Brooke Hofhenke (American University – Washington College of Law)

Norms of Computer Trespass (pdf; 42 pages; May 2, 2015) – Orin Kerr (The George Washington University Law School)

Searching Places Unknown: Law Enforcement Jurisdiction on the Dark Web (pdf; 45 pages; March 5, 2016) – Ahmed Ghappour (UC Hastings College of the Law)

International Signals Intelligence Law: Provisions and History (March 2016) – A.M. Rutkowski

Inefficiently Automated Law Enforcement (pdf; 34 pages; May 4, 2016) – Woodrow Hartzog, Gregory Conti, John Nelson and Lisa A. Shay

How Governments Can Promote Automated Driving (pdf; 46 pages; March 17, 2016) – Bryant Walker Smith (University of South Carolina – School of Law)


Robots, AI and the Law (link round-up)

We Robot 2016 video recap at (April 11, 2016) – all videos at the link:

A. Moral Crumple Zones: Cautionary Tales in Human Robot Interaction (video duration 01:40:00)

B. SmartPrivacy in Human-Robot Interaction (video duration 01:20:00)

C. How to Engage the Public on the Ethics and Governance of Lethal Autonomous Weapons (video duration 01:03:00)

D. Autonomous Vehicles (video duration 02:35:00)

E. Privacy and Healthcare Robots (video duration 01:10:30)

F. Institutional Options for Robot Governance (video duration 01:31:30)

G. Will #BlackLivesMatter to RoboCop? (video duration 01:16:30)

H. Siriously? Free Speech Rights for Artificial Intelligence (video duration 01:20:30)

I. What Do We Really Know About Robots and the Law? (video duration 01:13:00)

Hearing on the “The Legal and Ethical Aspects of Robotics and Artificial Intelligence” – European Parliament Committee on Legal Affairs (April 21, 2016)

Hearing Agenda (single page pdf)

Link to the recorded video of the hearing. The relevant portion begins at 00:54:30 (total length of hearing: approximately 2 hours, 21 minutes)

Robots in American Law presentation by law professor Ryan Calo at the University of Texas Law School (March 22, 2016). Two videos: main presentation (video duration 01:08:00) and a conversation with Ryan Calo (video duration 00:15:00). See also: Robots in American Law – Ryan Calo (University of Washington Law School) (pdf; 44 pages)

What Is a Robot? The Question is More Complicated Than it Seems (March 22, 2016) – Adrienne Lafrance in The Atlantic

Four Reasons America’s Laws Governing Robots Are Terrifyingly Outdated; Robots are Evolving Faster Than the Laws That Rule Their Existence (March 29, 2016) – Sarah Sloat in Inverse

The Race Is On to Control Artificial Intelligence, and Tech’s Future (March 25, 2016) and Silicon Valley Looks to Artificial Intelligence for the Next Big Thing (March 27, 2016) – New York Times. See also: AI Hits the Mainstream (March 28, 2016) – MIT Technology Review

Let Artificial Intelligence Evolve; That Way, It’ll Be Moral (April 18, 2016) – Michael Chorost in Slate

Robots Are Learning to Fake Empathy (April 6, 2016) – MotherBoard

What the Scarlett Johansson Robot Says About the Future; Courts Need to Grapple with New Questions Raised by Increasingly Technology-Savvy Fans (April 7, 2016) – Margot E. Kaminski in Slate

Flash Forward podcast: “Rude Bot Rises” on conscious artificial intelligence (podcast length: 00:30:45) (April 5, 2016)

Humans Can’t Escape Killer Robots, but Humans Can Be Held Accountable for Them (April 15, 2016) – P.W. Singer and August Cole at ViceNews

Terrifyingly Convenient; A.I. Assistants Can Give You the News, Order You a Pizza, and Tell You a Joke and All You Have To Do is Trust Them – Completely (April 3, 2016) – Will Oremus in Slate

Chat Bots, Conversation and AI as an Interface (March 30, 2016) – Benedict Evans


Microsoft vs. the USA/DOJ

The Complaint: pdf; 17 pages (April 14, 2016)

Statement of Microsoft’s President and Chief Legal Officer (Brad Smith): Keeping Secrecy the Exception, Not the Rule: An Issue for Both Consumers and Businesses (April 14, 2016)

News Report: Microsoft Sues Justice Department to Protest Electronic Gag Order Statute (April 14, 2016) – New York Times

Legal Analysis:

A New Lawsuit from Microsoft: No More Gag Orders! (April 14, 2016) – law professor Jennifer Daskal at JustSecurity

Why Microsoft’s Fight with the Government Should Overshadow Apple’s – the Electronic Frontier Foundation and Two Law Professors Explain Its Significance (April 15, 2016) – Inverse

Related: House Panel’s Bill Strengthens Privacy for Older Emails – New York Times


Apple, the FBI and the All Writs Act (link round-up; updated 05.13.2016)

DOJ/FBI Vacate San Bernardino iPhone Case:

DOJ Motion to Vacate (pdf; 3 pages) (March 28, 2016) and Judge’s Order to Vacate (pdf; 1 page) (March 29, 2016)

Apple and DOJ Statements (March 28, 2016) – reproduced in a BuzzFeed article on the motion to vacate

U.S. Says It Has Unlocked iPhone Without Apple (March 28, 2016) – New York Times

“I guarantee you at some point, somebody told Director Comey, ‘good god, Jim, you’ve got to make this go away.'” – Jonathan Ździarski (@JZdziarski): March 28, 2016

Related: U.S. Government Drops New York iPhone Case After Third Party Gives It the Passcode (April 23, 2016) – Daily Dot

The San Bernardino iPhone Unlock:

Nothing Significant Found on San Bernardino iPhone So Far (April 13, 2016) – CBS News

FBI Paid Professional Hackers One-Time Fee to Crack San Bernardino iPhone (April 12, 2016) – Washington Post; and Apple iPhone Unlocking Maneuver Likely to Remain Secret (April 14, 2016) – Reuters

F.B.I. Director Suggests Bill for iPhone Hacking Topped $1.3 Million (April 21, 2016) – New York Times

FBI Says Method Used to Unlock iPhone Doesn’t Work with iPhone 5s or Newer (April 7, 2016) – TechCrunch

Apple Likely Can’t Force FBI to Disclose How It Got Data From Seized iPhone (March 28, 2016) – ArsTechnica; and the government’s Vulnerabilities Equities Process (pdf at the link; 14 pages). See also: Thank You for Hacking the iPhone, Now Tell Apple How You Did It (March 22, 2016) – BloombergBusiness weighing in on whether the FBI, if successful in getting into the San Bernardino iPhone, would be required to share with Apple the means it used.

What’s Next?

FBI’s Comey Expects More Litigation Over Access to Electronic Devices (May 11, 2016) – Reuters

Burr-Feinstein Draft Legislation – see my separate post here

A Possible Tool to Unlock the iPhone Means Something . . . or Nothing (March 22, 2016) – Susan Hennessy and Benjamin Wittes at LawFare:

“In the longer term, however, the episode changes nothing. It merely defers the important questions which we’re eventually going to have to resolve, either in the courts or in Congress or both:

• Does the All Writs Act apply to compel this type of assistance from an information service provider like Apple, or is such an order precluded by CALEA?

• If the All Writs Act does properly apply, what constitutes an undue burden under the controlling test in New York Telephone Company?

• Is there an obligation for the government to seek assistance from other federal agencies and the commercial sector before demonstrating that non-party assistance is required as a matter of necessity under the All Writs Act?

• More generally, what obligations do we want companies like Apple to have to cooperate with and assist law enforcement in the investigation and prosecution of their users?”

I would add to the Hennessy/Wittes list of questions to be resolved: if the All Writs Act does properly apply in order to compel assistance from a company such as Apple, how might the constitution (primarily, though not exclusively, the first amendment) limit the type and extent of assistance to law enforcement a court could require?

Repetitive Encryption Tirades Could Be Giving Way to Debate Over ‘Lawful Hacking’ (April 20, 2016) – The Intercept

The Encryption Debate Enters Phase Two (March 16, 2016) – Daniel Weitzner (Director of the MIT Internet Policy Research Initiative and Principal Research Scientist at the MIT Computer Science and Artificial Intelligence Lab) in LawFare; and A New Front in the Second Crypto War (March 15, 2016) – the generally pro-FBI/IC and often provocative Benjamin Wittes in LawFare; two important reads on what might come next regarding encryption – law and policy

WhatsApp Encryption Said to Stymie Wiretap Order (March 12, 2016) – New York Times

Why Do the Feds Usually Try to Unlock Phones? It’s Drugs, Not Terrorism (March 31, 2016) – Wired; and Measuring the ‘Darkness’ of ‘Going Dark’ – Just How Dark is Law Enforcement Going? (April 4, 2016) – Ryan Hagemann of the Niskanen Center with a similar point regarding the typical governmental reason to seek decryption (i.e., the drug war)

Court Orders, Filings and Schedules:

Magistrate Judge Sheri Pym’s February 16, 2016 Order (alternate link)

DOJ Motion to Compel Apple Compliance (pdf; 35 pages)(February 19, 2016)

Apple’s Motion to Vacate Order Compelling Apple to Assist Agents in Search, and Opposition to Government’s Motion to Compel Assistance (link is to pdf hosted at; the motion is approximately 36 pages without supporting documents and 415 pages with supporting documents) (alternate link to the motion without supporting documents at the New York Times: Apple’s Motion Opposing the iPhone Order and alternate link to the motion without supporting documents at DocumentCloud) (February 25, 2016) – My quick initial reaction before seeing the upcoming DOJ response: If the magistrate judge is inclined to get out of the mess created by her initial order, there appear to be adequate grounds to do so based solely on Apple’s All Writs Act arguments, without getting to the constitutional question (primarily 1st Amendment)

Apple Files Motion to Vacate the Court Order to Force it to Unlock iPhone (February 25, 2016) – TechCrunch

Apple Files Appeal in San Bernardino iPhone Case (March 2, 2016) – Politico

DOJ Reply Brief (March 10, 2016) (pdf, hosted at cryptome; 484 pages with supporting documents; main portion of filing = first 43 pages)

The Tone between Apple and the FBI is Now Openly Hostile; includes transcript of the reaction to the DOJ filing of Bruce Sewell, Apple’s general counsel and SVP of legal (March 10, 2016) – Verge

Apple Response to Latest DOJ Filing (March 15, 2016) (pdf; 33 pages without all supporting documents; alternative link to pdf (351 pages) hosted at with the supporting documents)

Apple’s Response To DOJ: Your Filing Is Full Of Blatantly Misleading Claims And Outright Falsehoods (March 15, 2016) – TechDirt

Amicus Briefs and Letters to Court in Support of Apple – Apple website

Pro-FBI/DOJ Amicus Briefs: California State Sheriffs, Police Chiefs and Peace Officers Associations, San Bernardino County DA, Federal Law Enforcement Officers Association (pdf is included within the collection of amicus briefs at the link), and the relatives of several San Bernardino shooting victims (March 3, 2016)

Schedule Re: Magistrate Judge’s Order – Arguments set for March 22, 2016 (link to judge’s scheduling order, including briefing schedule, here)

Magistrate Judge, at the request of the DOJ, Vacates the March 22nd Hearing (pdf; 3 pages) (March 21, 2016) – in order to allow the DOJ/FBI time to ascertain if a method of unlocking the San Bernardino terrorist iPhone, that was suggested by a ‘third party’ on March 20, 2016, in fact works. Also: Court Reporter’s Transcript (pdf; 12 pages) of the Oral Hearing on Monday, March 21, 2016 regarding the motion to vacate the March 22nd hearing. DOJ committed to filing a status update by April 5, 2016. The Magistrate Judge’s original order to compel Apple was stayed.

DOJ Motion to Vacate (pdf; 3 pages) (March 28, 2016) and Judge’s Order to Vacate (pdf; 1 page) (March 29, 2016)

Legal Analysis:

A Coherent Middle Ground in the Apple-FBI All Writs Act Dispute (March 21, 2016) – law professors Robert Chesney and Steve Vladeck at LawFare; and A friendly critique of the proposed Chesney/Vladeck ‘middle ground’ in the Apple/FBI disputes (March 21, 2016) – law professor Marty Lederman at JustSecurity

The Convoluted Logic Behind Apple’s ‘Obstruction’ of Law Enforcement (March 8, 2016) – Sarah Jeong at MotherBoard

A Primer on Apple’s Brief in the San Bernadino iPhone Fight (February 26, 2016) – law professor Robert Chesney at LawFare

Really Understanding Apple’s Legal Brief in the FBI Case (February 26, 2016) – Nilay Patel in Verge

The Law is Clear: The FBI Cannot Make Apple Rewrite its OS (March 16, 2016) – Susan Crawford at Backchannel

Apple’s iPhone Blunder (February 22, 2016) – Law professor Richard Epstein

Apple’s Strongest Legal Defenses Against the FBI (February 24, 2016) – Jason Koebler at MotherBoard

Preliminary Thoughts on the Apple iPhone Order in the San Bernardino Case (Part 1) and (Part 2): the All Writs Act and (Part 3): the Policy Question (February 18, 19 and 24, 2016) – Orin Kerr in the Washington Post

The Weak Main Argument in Judge Orenstein’s Apple Opinion (March 2, 2016) – Orin Kerr in the Washington Post

Trust, Apple, and the First Amendment (February 23, 2016) – Law professor Andrew Keane Woods at LawFare

Apple’s ‘Code = Speech’ Mistake (March 1, 2016) – law professor Neil Richards in MIT Technology Review; and Apple-FBI Fight Asks: Is Code Protected as Free Speech? (February 23, 2016) – Bloomberg; and Apple’s First Amendment Case Against the FBI (February 19, 2016) – Jason Koebler at MotherBoard

Why the Fourth Amendment Should Be Part of the Apple Case (February 29, 2016) – law professor Richard Re

CALEA Limits the All Writs Act and Protects the Security of Apple’s Phones and More CALEA and Why It Trumps the FBI’s All Writs Act Order (February 19 and 22, 2016) – Albert Gidari, Director of Privacy at Stanford’s CIS

DOJ Misleads Court on CALEA in the Apple Case (March 11, 2016) – Albert Gidari at Stanford CIS

Apple, the FBI, and the All Writs Act (February 19, 2016) – Michael Dorf at Dorf on Law

The Public Relations Battle:

The Behind-the-Scenes Fight Between Apple and the FBI (March 20, 2016) – Bloomberg

Full Transcript of TIME’s Interview With Apple CEO Tim Cook (March 17, 2016) – Time

Apple Encryption Engineers, if Ordered to Unlock iPhone, Might Resist (March 17, 2016) – New York Times. While I understand the sentiment, this strikes me as the kind of thing that might annoy the magistrate judge.

Video of President Obama speaking at SXSW on the FBI vs. Apple dispute (relevant portion: 01:16:00 to 01:27:35).

  “Shorter Obama at #SXSW on crypto: we need tech community to figure out a compromise that allows lawful access. (There, saved u 10 minutes.)” – Kevin Bankston (@KevinBankston): March 11, 2016

Obama Wants Nonexistent Middle Ground on Encryption; Warns Against ‘Fetishizing Our Phones’ (March 11, 2016) – The Intercept

President Obama Is Wrong On Encryption; Claims The Realist View Is ‘Absolutist’ (March 11, 2016) – TechDirt

Apple and U.S. Bitterly Turn Up Volume in iPhone Privacy Fight (March 10, 2016) – New York Times

Who’s for Apple and Who’s for the FBI: The Full List (March 4, 2016) – Fortune

Video of the House Judiciary Committee hearing on “The Encryption Tightrope: Balancing Americans’ Security and Privacy” (March 1, 2016)

The Apple-FBI Encryption Hearing Was Unexpectedly Hostile to the FBI Director (March 1, 2016) – Motherboard

Testimony of Susan Landau, Professor of Cybersecurity Policy Worcester Polytechnic Institute for House Judiciary Committee Hearing on ‘The Encryption Tightrope: Balancing Americans’ Security and Privacy’ (March 1, 2016) (pdf; 25 pages); See also: Bruce Sewell’s (Apple General Counsel and SVP) statement for the committee (pdf; 3 pages)

Apple’s Dear Customer Letter (February 16, 2016)

Apple’s FAQ for Customers: Answers to Your Questions about Apple and Security; related: Demystifying Apple’s FAQ – a Rebuttal (February 29, 2016) – Blair Reeves at LawFare

Apple’s Internal Employee Letter: In Employee Email, Apple CEO Tim Cook Calls For Commission On Interaction Of Technology And Intelligence Gathering (February 22, 2016; full text of employee email at the link)

Tim Cook’s Full 30-minute Interview on Apple’s Fight with the FBI; Apple’s CEO Says Federal Authorities are ‘Trampling Civil Liberties’ (February 24, 2016) – full ABC News interview available at Verge

The FBI Wants to Roll Back Safeguards that Keep Us a Step Ahead of Criminals (March 6, 2016) – Apple SVP Craig Federighi op-ed in the Washington Post

FBI Director Comey’s Statement (published at LawFare): We Could Not Look the Survivors in the Eye if We Did Not Follow this Lead (February 21, 2016)

Pro-Encryption Lawmakers See ‘Apple vs. FBI’ Fight as a Chance to Educate Congress (February 23, 2016) – DailyDot

In the Apple Case, a Debate Over Data Hits Home (March 13, 2016) – New York Times

Intelligence Community Viewpoint:

On Encryption Battle, Apple Has Advocates in Ex-National Security Officials (April 22, 2016) – New York Times

Encryption, Privacy Are Larger Issues Than Fighting Terrorism, Clarke Says (March 14, 2016) – NPR

Why the NSA is Staying Out of Apple’s Fight with the FBI (March 9, 2016) – Russell Brandon of The Verge on what is a very interesting question. See also NSA Is Mysteriously Absent From FBI-Apple Fight (March 3, 2016) – The Intercept

Technical Aspects:

Apple Policy on Bugs May Explain Why Hackers Would Help F.B.I. (March 22, 2016) – New York Times

My Take on FBI’s ‘Alternative’ Method (March 21, 2016) – Jonathan Zdziarski

One of the FBI’s Major Claims in the iPhone Case is Fraudulent (March 7, 2016) – Daniel Kahn Gillmor, Technology Fellow, ACLU Speech, Privacy, and Technology Project

In Apple vs. the FBI, There is No Technical Middle Ground (March 2, 2016) – MIT Technology Review

A Bomb on a Leash + Apple Should Own The Term ‘Warrant Proof’ + An Example of ‘Warrant Friendly’ Security + Mistakes in the San Bernardino Case (all March 11, 2016 except for the last, which is March 2, 2016 and updated on March 9th) – Jonathan Zdziarski

Members Of Congress Dismayed By FBI Director’s Lack Of Tech Knowledge (March 12, 2016) – Fast Company

San Bernardino iPhone Technically Can Be Hacked Without Apple, Researchers Say (February 21, 2016) – ABC News

Who Needs Apple When the FBI Could Hack Terrorist iPhone Itself (March 4, 2016) – Bloomberg

Common Software Would Have Unlocked San Bernardino Shooter’s iPhone (February 21, 2016) – CBS News

Code is Law and The Burden of Forensic Methodology on Apple and On FBI’s Interference with iCloud Backups and On Ribbons and Ribbon Cutters (February 17, 18, 21 and 23, 2016) – Jonathan Zdziarski

Apple Is Said to Be Trying to Make It Harder to Hack iPhones (February 24, 2016) – New York Times

Johns Hopkins Researchers Poke a Hole in Apple’s Encryption (March 21, 2016) – Washington Post

How Did Governments Lose Control of Encryption? (March 2, 2016) – BBC

The Ground Truth About Encryption and the Consequences of Extraordinary Access – Chertoff Group report (pdf; 28 pages)

On the San Bernardino Suspect’s Apple ID Password Reset (February 21, 2016) – Daring Fireball

Apple Says the Government Bungled Its Chance to Get That iPhone’s Data (February 19, 2016) – Kim Zetter in Wired

On FBI’s Interference with iCloud Backups (February 21, 2016) – Jonathan Zdziarski

FBI Rebuts Reports that County Reset San Bernardino Shooter’s iCloud Password without Consent (February 20, 2016) – Los Angeles Times

Apple’s iOS Security Guide on Passcodes and the Secure Enclave (February 17, 2016) – Daring Fireball

Apple Can Comply with the FBI Court Order (February 17, 2016) – Dan Guido at Trail of Bits Blog

A Technical Perspective on the Apple iPhone Case (February 19, 2016) – EFF

Some Notes on Apple Decryption of San Bernardino Phone (February 16, 2016) – Errata Security

No, Apple Has Not Unlocked 70 iPhones For Law Enforcement (February 18, 2016) – Matthew Panzarino

Most Software Already has a ‘Golden Key’ Backdoor: the System Update (February 27, 2016) – ArsTechnica

MSM Initial News Reports:

Apple Fights Order to Unlock San Bernardino Gunman’s iPhone (February 17, 2016) – New York Times

Apple Vows to Resist FBI Demand to Crack iPhone Linked to San Bernardino Attacks (February 17, 2016) – Washington Post

Background – Events Leading up to FBI’s Action:

US Government Pushed Tech Firms to Hand Over Source Code (March 17, 2016) – ZDNet

Secret Memo Details U.S.’s Broader Strategy to Crack Phones (February 19, 2016) – Bloomberg

Apple’s Line in the Sand Was Over a Year in the Making (February 18, 2016) – New York Times

How Tim Cook, in iPhone Battle, Became a Bulwark for Digital Privacy (February 18, 2016) – New York Times

Inside the FBI’s Encryption Battle with Apple (February 18, 2016) – Guardian

Apple vs. FBI: ‘Just This Once’? (February 23, 2016) – Julian Sanchez at JustSecurity

The List Of 12 Other Cases Where The DOJ Has Demanded Apple Help It Hack Into iPhones (February 23, 2016) – TechDirt

Why the Government Can’t Actually Stop Terrorists From Using Encryption (March 15, 2016) – Washington Post

Background – the All Writs Act:

Text of the All Writs Act (28 U.S. Code § 1651) in its entirety:

(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.

(b) An alternative writ or rule nisi may be issued by a justice or judge of a court which has jurisdiction.

Wikipedia entry, including a useful audio summary by Jonathan Mayer of the All Writs Act (see the audio link on the Wikipedia page)

The Centuries-Old Law the Government Wants to Use to Unlock a Terrorist’s iPhone (February 17, 2016) – Washington Post

The Obscure 1789 Statute That Could Force Apple to Unlock a Smartphone (October 13, 2015) – Sarah Jeong at MotherBoard

The Dangerous All Writs Act Precedent in the Apple Encryption Case (February 19, 2016) – New Yorker

Background – Selected Noteworthy All Writs Act Cases:

United States v. New York Telephone Co., 434 U.S. 159 (1977)

Price v. Johnston, Warden, 334 U.S. 266 (1948)

Pennsylvania Bureau of Corrections v. United States Marshals Service, 474 U.S. 34 (1985)

Background – Recent DOJ Use of the All Writs Act:

This Map Shows How the Apple-FBI Fight Was About Much More Than One Phone (March 30, 2016) – ACLU

Department of Justice Drops Brooklyn iPhone Case (April 22, 2016) – San Francisco Chronicle; and U.S. Government Drops New York iPhone Case After Third Party Gives It the Passcode (April 23, 2016) – Daily Dot

Justice Department Asks Judge to Revisit NY iPhone Case (March 7, 2016) – Reuters

pdf (51 pages) of the DOJ’s March 7, 2016 appeal to the United States District Court (Eastern District of New York) from Magistrate Orenstein’s rejection (pdf; 50 pages) of the Apple New York All Writs Act order. The appeal will be considered by Judge Margo Brodie.

Apple Wins Major Court Victory in a Case Similar to San Bernardino (February 29, 2016) – The Intercept

Judge Orenstein’s Order (pdf; 50 pages) (alternate links: here and here)

The Weak Main Argument in Judge Orenstein’s Apple Opinion (March 2, 2016) – Orin Kerr in the Washington Post

Apple v. FBI Primer #2: On Judge Orenstein’s Ruling in the Queens Meth Case (March 1, 2016) – law professor Robert Chesney at LawFare

Magistrate Judge Orenstein’s Order in the EDNY, Denying DOJ’s All Writs Act Request (February 29, 2016) – law professor Marty Lederman at JustSecurity

DOJ Claims Apple Should Be Forced To Decrypt iPhones Because Apple, Not Customers, ‘Own’ iOS (October 26, 2015) – TechDirt

The All Writs Act, Software Licenses, and Why Judges Should Ask More Questions (October 26, 2015) – Jennifer Granick and Riana Pfefferkorn at JustSecurity

Some Academic Papers of Potential Relevance:

1st Amendment: Metaphor is the Key: Cryptography, the Clipper Chip, and the Constitution – A. Michael Froomkin (1995)

4th Amendment: Furtive Encryption: Power, Trust, and the Constitutional Cost of Collective Surveillance – Jeffrey Vagle (2015); and related: Why the Fourth Amendment Should Be Part of the Apple Case – law professor Richard Re

Background – Crypto Wars 1.0, 2.0 and Backdoors:

Keys Under Doormats: Mandating Insecurity by Requiring Government Access to All Data and Communications (pdf; 34 pages) – MIT Computer Science and Artificial Intelligence Laboratory Technical Report (July 6, 2015)

Encryption: Selected Legal Issues (pdf; 29 pages)(March 3, 2016) – Richard M. Thompson II and Chris Jaikaran of the Congressional Research Service; and Encryption and Evolving Technology: Implications for U.S. Law Enforcement Investigations (pdf; 12 pages) – Kristin Finklea of the Congressional Research Service

Keeping Secrets: Four Decades Ago, University Researchers Figured out the Key to Computer Privacy, Sparking a Battle with the National Security Agency that Continues Today. (November 7, 2014) – Henry Corrigan-Gibbs (Stanford Magazine)

Encryption and Globalization – a 2011 academic paper (Columbia Science and Technology Law Review, Vol. 23, 2012) by Peter Swire and Kenesa Ahmad, which includes a brief summary of the original 90’s “Crypto Wars”

A History of Backdoors and How Do We Build Encryption Backdoors? (July 20, 2015 and April 16, 2015) – Professor Matthew Green (Johns Hopkins) at his A Few Thoughts on Cryptographic Engineering blog

“Don’t Panic – Making Progress on the ‘Going Dark’ Debate” – Berkman Center Report (overview here; the Report pdf here (37 pages, including notes and appendices)) (February 1, 2016)

Why Are We Fighting the Crypto Wars Again? (March 11, 2016) – Steven Levy at Backchannel

Tech Industry Reaction:

Apple Gets Tech Industry Backing in iPhone Dispute, Despite Misgivings (March 2, 2016) – New York Times; and Solidarity With Apple Masks Unease In Silicon Valley About Legal Fight Over Dead Terrorist’s iPhone (February 29, 2016) – International Business Times

Amicus Briefs and Letters to Court in Support of Apple – Apple website

Statement of Reform Government Surveillance coalition (including AOL, Apple, Dropbox, Evernote, Facebook, Google, LinkedIn, Microsoft, Twitter, and Yahoo)(February 17, 2016)

Analysis and Opinion – Pro-FBI:

NSA Isn’t the Going Dark Solution, Part I: Richard Clarke Gets It Wrong (March 24, 2016), NSA Isn’t the Going Dark Solution, Part II: There’s No Such Thing As Magic (March 25, 2016), NSA Isn’t the Going Dark Solution, Part III: “Beat Me If You Can” (March 25, 2016), and The Very Definition of Digital Age Chutzpah (March 23, 2016) – LawFare (Susan Hennessy, except for the last, written by Benjamin Wittes)

Apple is Selling You a Phone, Not Civil Liberties (February 18, 2016) – Susan Hennessy and Benjamin Wittes at LawFare; and previously (February 3, 2016) at LawFare by Susan Hennessy: Apple’s Going Dark Doublespeak

Apple’s iPhone Blunder (February 22, 2016) – Law professor Richard Epstein

Questions for Apple (March 1, 2016) – Susan Hennessy and Benjamin Wittes at LawFare

Apple’s Crocodile Tears (March 2, 2016) – law professor Omri Ben-Shaham at TAP

Apple’s Rotten Core; CEO Tim Cook’s Case for Not Aiding the FBI’s Anti-Terror Effort Looks Worse Than Ever (February 28, 2016), and Tim Cook’s Bad Apple Refusing to Cooperate with the FBI is About Protecting the Brand, Not iPhone Users (February 21, 2016) – Gordon Crovitz in the Wall Street Journal (subscription required)

Who Does Apple Think It Is? (February 20, 2016) – Michael Wolff in USA Today

Why Apple’s iPhone Battle with the Government will Likely be a Privacy Setback (February 18, 2016) – Vivek Wadhwa in The Washington Post

  “The war on terror can’t be a war on one of world’s great religions. Jim Comey must give a speech calling Apple a religion of peace.” – Stewart Baker (@stewartbaker): February 22, 2016

The China Question and Other International Ramifications:

Apple Refused China Request for Source Code in Last Two Years (April 20, 2016) – Reuters

A View of ISIS’s Evolution in New Details of Paris Attacks (March 19, 2016) – New York Times on the operational security (e.g., use of burner phones rather than encrypted iPhones) of the Paris attackers

UK Surveillance Powers Bill Could Force Startups to Bake in Backdoors (March 10, 2016) – TechCrunch

Feds Fire Back on San Bernardino iPhone, Noting that Apple has Accommodated China (March 10, 2016) – ArsTechnica

The World’s Not Waiting for California: France Moves to Enforce Decryption (March 7, 2016) – Daniel Severson at LawFare; and France Clears Bill That Could Force Apple to Unlock Terror Data (March 8, 2016) – Bloomberg News reporting on the lower house of the French Parliament clearing the proposed bill (which still has a ways to go before it could become law)

British Spy Agency Chief Says Tech Companies Should Provide a Way Around Encryption (March 8, 2016) – MIT Technology Review

Deposing Tim Cook (February 25, 2016) – Stewart Baker in the Washington Post posing questions to Apple about the extent of its cooperation with Chinese authorities

Apple in China, Part I: What Does Beijing Actually Ask of Technology Companies? (February 22, 2016) – Samm Sacks at LawFare

Apple is Reportedly Giving the Chinese Government Access to its Devices for ‘Security Checks’ (February 23, 2015) – Quartz

Other Analysis and Opinion – Largely Pro-Apple:

Some For-the-Moment Final Thoughts on Apple, Encryption and the FBI (April 7, 2016) – David Post in the Washington Post

John Oliver Explains Why Apple Needs Encryption to Stay a Step Ahead of Hackers (March 14, 2016) – video embed (18 minutes) at The Verge

  “Reminder: Farook destroyed his + wife’s personal phones. There isn’t jack on his work iPhone. He didn’t even bother to hit it with a hammer.” – SecuriTay (@SwiftOnSecurity): March 10, 2016

The Feds Are Wrong to Warn of ‘Warrant-Proof’ Phones (March 17, 2016) – professor Woodrow Hartzog in the MIT Technology Review

Why This iPhone?- One Thing Getting Lost in the Apple-FBI Debate: It Doesn’t Seem Likely that the Device in Question will Yield any Critical Information (February 19, 2016) – Marcy Wheeler in Slate

Apple, FBI, and Software Transparency (March 10, 2016) – Bryan Ford at Freedom to Tinker

Apple Is Right on Encryption; the FBI Doesn’t Want Merely One Phone, and Its Warrant is Legally Suspect (March 1, 2016) – Wall Street Journal Editorial Board

The Apple Case Will Grope Its Way Into Your Future (February 24, 2016) – Farhad Manjoo in the New York Times

Why Apple Is Fighting Not To Unlock iPhones For The Government (February 17, 2016) – Matthew Panzarino at TechCrunch

How to Destroy Pandora’s iPhone (February 26, 2016) – Nicholas Weaver at LawFare

Apple’s FBI Battle is Complicated; Here’s What’s Really Going On (February 18, 2016) – Kim Zetter at Wired

Feeble Noise Pollution; FBI, Apple, Liberty, Security, blah blah blah (February 19, 2016) – the Grugq

Dissecting And Dismantling The Myths Of The DOJ’s Motion To Compel Apple To Build A Backdoor (February 19, 2016) – TechDirt

On Preventing the Widespread Use of a Law-Enforcement-Friendly iOS Patch and Apple and FBI: PIN Codes to Update Firmware, Code as Free Speech, and Legislative Clarification (February 25 and 26, 2016) – Herb Lin at LawFare

Decrypting an iPhone for the FBI (February 22, 2016) – Bruce Schneier

The iPhone Writ Large (February 19, 2016) – Derek Bambauer at Info/Law

Obama Administration, FBI Must Act to Restore US Government’s Credibility in Apple’s Encryption Debate (February 25, 2016) – AppleInsider on what it deems the FBI’s disingenuous positioning (e.g., it’s not about precedent) in the San Bernardino case

The Conscription of Apple’s Software Engineers (February 18, 2016) – Conor Friedersdorf in The Atlantic

Apple, the FBI, and the San Bernadino iPhone (February 17, 2016) – Dan Wallach at Freedom to Tinker

Not a Slippery Slope, but a Jump off the Cliff (February 17, 2016) – Nicholas Weaver at LawFare

Why the FBI’s Request to Apple Will Affect Civil Rights for a Generation (February 17, 2016) – Rich Mogull at MacWorld

The FBI is Striking at the Heart of Apple’s Security System; the Entire industry has Followed the iPhone’s Security Model – What Happens if it Breaks? (February 17, 2016) – The Verge

Why Tim Cook is Wrong: A Privacy Advocate’s View; Apple Should be Unable to Comply with this Request (February 17, 2016) – Trevor Potts



Law, Tech and Policy

Broadband Consumer Privacy Proposal Fact Sheet (March 10, 2016) – FCC release (3 page pdf at the link)

It’s Your Data: Empowering Consumers to Protect Online Privacy (March 10, 2016) – FCC Chairman Tom Wheeler at the Huffington Post;

5 Things You Should Know About the FCC’s Proposed Privacy Rules (March 14, 2016) – ProPublica;

The Feds Are Prepping Strict Rules to Protect Your Online Privacy (March 14, 2016) – Wired

What ISPs Can See; Clarifying the Technical Landscape of the Broadband Privacy Debate (March 2016) – Upturn report

The Dragonslayer – a Year Ago, FCC Chairman Tom Wheeler Saved the Internet; in this Exclusive Interview, He Tells Us What’s Next – Nilay Patel at Verge

Obama Administration Set to Expand Sharing of Data That N.S.A. Intercepts (February 25, 2016) – New York Times; and Surprise! NSA Data Will Soon Routinely Be Used For Domestic Policing That Has Nothing To Do With Terrorism (March 10, 2016) – Radley Balko in the Washington Post; and FBI Quietly Changes its Privacy Rules for Accessing NSA Data on Americans (March 8, 2016) – Guardian

Why the OPM Hack Is Far Worse Than You Imagine (March 11, 2016) – Michael Adams at LawFare

It Took a FOIA Lawsuit to Uncover How the Obama Administration Killed FOIA Reform (March 9, 2016) – Vice; and More Transparent Than Thou (March 15, 2016) – Brett Max Kaufman of the ACLU at JustSecurity

Time to Rethink Mandatory Password Changes (March 2, 2016) – Lorrie Cranor (FTC Chief Technologist) at FTC blog; also Two-Factor Authentication (2FA) versus Two-Step Verification (2SV); What’s the Difference and Which is Better? (March 14, 2016) – David Bisson at

The Beginning of the End for Encryption Schemes? New Quantum Computer, Based on Five Atoms, Factors Numbers in a Scalable Way (March 3, 2016) – MIT

Academic Paper: Policing Hoover’s Ghost: The Privilege for Law Enforcement Techniques (download pdf at the link; 34 pages) (March 1, 2016) – professor Stephen W. Smith

Intel Whistle-Blowers Fear Government Won’t Protect Them (March 8, 2016) – Eli Lake at BloombergView

Taking Baby Steps Toward Software That Reasons Like Humans (March 6, 2016) – New York Times

Biometrics are Coming, Along with Serious Security Concerns (March 9, 2016) – Wired

Hunting What’s Next in High Tech (March 11, 2016) – Saku Panditharatne at a16z

General Interest

Mathematicians Discover Prime Conspiracy (March 13, 2016) – Quanta; and Mathematicians Are Geeking Out About a Bizarre Discovery in Prime Numbers (March 15, 2016) – Quartz

Can You Keep a Secret? Former C.I.A. Chief Michael Hayden on Torture and Transparency (March 7, 2016) – New Yorker


Quote of the Day

“[B]ecause the cost of saving all this data is so cheap, there’s no reason not to save as much as possible, and save it all forever. Figuring out what isn’t worth saving is hard. And because someday the companies might figure out how to turn the data into money, until recently there was absolutely no downside to saving everything. That changed this past year. What all these data breaches are teaching us is that data is a toxic asset and saving it is dangerous . . . . . We can be smarter than this. We need to regulate what corporations can do with our data at every stage: collection, storage, use, resale and disposal. We can make corporate executives personally liable so they know there’s a downside to taking chances. We can make the business models that involve massively surveilling people the less compelling ones, simply by making certain business practices illegal.”

— Bruce Schneier: Data is a Toxic Asset at his website Schneier on Security. Read the whole thing.



Law, Tech and Policy

Snooper’s Charter: Revised ‘Investigatory Powers Bill’ introduced by the British government: text of bill, codes of practice, and additional documents

Privacy Shield: Restoring Trust in Transatlantic Data Flows Through Strong Safeguards: European Commission Presents EU-U.S. Privacy Shield – European Commission press release with links to the various related documents; see also E.U. and U.S. Release Details on Trans-Atlantic Data Transfer Deal – New York Times

Fight Against Terrorism: Inside The Obama Administration’s Attempt To Bring Tech Companies Into The Fight Against ISIS – BuzzFeed

Encryption: A Worldwide Survey of Encryption Products – Berkman Center Research Publication (Bruce Schneier, Kathleen Seidel, and Saranya Vijayakumar) (pdf at this link; 24 pages)

CyberWarfare and Hacking:

These Are the Cyberweapons Used to Hack Sony – MotherBoard

U.S. Had Cyberattack Plan if Iran Nuclear Dispute Led to Conflict – New York Times

New Chinese Media Restrictions: Beijing is Banning all Foreign Media from Publishing Online in China – Quartz

Facebook Free Basics: Nothing Is Free, Not Even Facebook Free Basics – Om Malik; see also India Just Banned Facebook’s Controversial Free Internet Plan – BuzzFeed

FISA Amendments Act: Trends and Predictions in Foreign Intelligence Surveillance: The FISA Amendments Act and Beyond – David Kris at LawFare

NSA Reorganization: National Security Agency Plans Major Reorganization – Washington Post; related: Opinion: How NSA Reorganization Could Squander Remaining Trust – Jason Healey at CSM’s Passcode; and NSA Reorganizing – Bruce Schneier; and Good Defense is Good Offense: NSA Myths and the Merger – Susan Hennessey at LawFare

Internet Law: Surveying Ten Years Of Top Internet Law Developments – law professor Eric Goldman at his Technology & Marketing Law Blog

Future Computing and Emerging Technologies:

What’s Next in Computing? (February 21, 2016) – venture capitalist Chris Dixon

Ten Breakthrough Technologies: 2016 – MIT Technology Review

Copyright Reform: White Paper on Remixes, First Sale, and Statutory Damages (pdf; 117 pages) – Commerce Department’s internet policy task force; see also: Repairing Damages: The Commerce Department’s Copyright White Paper – CDT


Tech Policy for Startups – CDT’s suite of resources on tech policy for start-ups and entrepreneurs

Fixing the Inequity of Startup Equity – TripleByte

General Interest

Stop Paying Executives for Performance – Dan Cable and Freek Vermeulen in the Harvard Business Review

This Former Ad Agency CEO Says the Ad Industry Has Three Major Delusions Holding It Back – Business Insider

The Law of Banksy: Who Owns Street Art? (pdf; 36 pages) – Peter Salib in the University of Chicago Law Review (Vol. 83, No. 4, 2016)


Robots and the Law – New Academic Paper

Robots in American Law – Ryan Calo (University of Washington Law School) (pdf; 44 pages)

Related: Meet the Guy Running Our Robot Future – Observer interview with Ryan Calo

Robotics Conference: We Robot 2016, April 1 and 2, 2016, Coral Gables, Florida

Robot Law: book of collected law of robotics research ($, Edward Elgar Publishing)


Robot Walks Around, Carries Boxes and Takes a Hit in New Video (February 24, 2016) – New Scientist on new Boston Dynamics video of its Atlas robot

The Robots Are Coming for Wall Street (February 25, 2016) – New York Times

Is It Ok to Torture a Robot? (March 3, 2016) – Inverse


Pressure for Regulating Online Speech Related to Terrorism (updated 03.07.2016)

The Latest:

Government Enlists Tech Giants to Fight ISIS Messaging (February 25, 2016) – CNN

Did Congress Immunize Twitter Against Lawsuits for Supporting ISIS? (January 22, 2016) ; also (i) Tweeting Terrorists, Part I: Don’t Look Now But a Lot of Terrorist Groups are Using Twitter, (ii) Part II: Does it Violate the Law for Twitter to Let Terrorist Groups Have Accounts? and (iii) Part III: How Would Twitter Defend Itself Against a Material Support Prosecution? (February 14, 2016) – Zoe Bedell and Benjamin Wittes at LawFare

Can Twitter Materially Support ISIS While Actively Working to Defeat It? (February 19, 2016) – J.M. Berger at LawFare

Previously – Law Professors Propose Regulating Dangerous Speech:

Though apparently favored by law professors Eric Posner (University of Chicago) and Cass Sunstein (Harvard), a balancing test for first amendment review of laws targeting “dangerous speech” (that does not otherwise pose a clear and present danger) seems like both an overreaction and a misguided idea:

ISIS Gives Us No Choice but to Consider Limits on Speech – Law professor Eric Posner at Slate

Islamic State’s Challenge to Free Speech – Law professor Cass Sunstein at BloombergView


ISIS, Fear, and the Freedom of Speech – Geoffrey Stone

News Report:

ISIS Influence on Web Prompts Second Thoughts on First Amendment – New York Times

See also:

Senator Feinstein’s “Requiring Reporting of Online Terrorist Activity Act” (pdf; 3 pages)

White House Seeks to Enlist Silicon Valley to ‘Disrupt Radicalization’ – Guardian

Lawmakers Want Social Media Companies to Report Terrorists – Washington Post

The White House Asked Social Media Companies to Look for Terrorists. Here’s Why They’d #Fail – Jenna McLaughlin at The Intercept

How a ‘Digital Surge’ Can Help Beat Islamic State – Jared Cohen (founder and director of Google Ideas and advisor to the executive chairman of Alphabet Inc.) op-ed in the Los Angeles Times

Google’s Chairman Wants Algorithms to Censor the Internet for Hate Speech – Quartz, reacting to Eric Schmidt’s New York Times op-ed: Eric Schmidt on How to Build a Better Web

Terrorists Mock Bids to End Use of Social Media – New York Times

And in Europe:

Criminalize Websites that Refuse to Delete Terrorist Content, say MEPs – CIO


Some Recent Academic Papers and Reports of Interest

Encryption and Evolving Technology: Implications for U.S. Law Enforcement Investigations (pdf; 12 pages) – Kristin Finklea of the Congressional Research Service

“Don’t Panic – Making Progress on the ‘Going Dark’ Debate” – Berkman Center Report (overview here; the Report pdf here (37 pages, including notes and appendices))

T-Mobile’s Binge On Violates Key Net Neutrality Principles – Barbara van Schewick (Stanford Law School; Stanford CIS)

Consenting to Computer Use – James Grimmelmann (University of Maryland Law School)

Information Fiduciaries and the First Amendment – Jack Balkin (Yale Law School)

Who Should Define Injuries for Article III Standing? – Daniel Townsend

See also:

Daedalus’ Winter 2016 issue on “The Internet” – edited by Yochai Benkler and David Clark ($, also available for kindle at Amazon)



Law, Tech and Policy

Cybersecurity: How Does the Cybersecurity Act of 2015 change the Internet Surveillance Laws? – Orin Kerr in the Washington Post


The Trouble with the TPP – Canadian law professor, Michael Geist, is blogging every weekday until February 4th on what he believes are the significant problems with the Trans Pacific Partnership (TPP). The link is to his first daily post in the series

Human Rights Watch’s TPP Q&A

Trans-Pacific Partnership is a Wonderful Idea . . . for China – Dan Breznitz (University of Toronto) in the Globe and Mail

See also: my earlier posts on the TPP – here and here

EU vs. US on Data + Privacy:

The Transatlantic Data War – Europe Fights Back Against the NSA – Henry Farrell and Abraham Newman in Foreign Affairs

Time to Get Serious About Europe’s Sabotage of US Terror Intelligence Programs – Stewart Baker at his “Skating on Stilts” book-related website; “Skating on Stilts” has been released as a free creative commons book available here

More on Privacy: Lawrence Lessig: Technology Will Create New Models for Privacy Regulation – Wall Street Journal, and A Few Keystrokes Could Solve the Crime. Would You Press Enter? – Jonathan Zittrain at JustSecurity

Internet Access: How Facebook Stumbled On Its Quest to Give Internet Away For Free – BuzzFeed; See Also: Tech’s ‘Frightful 5’ Will Dominate Digital Life for Foreseeable Future – New York Times

Whistleblower Protections: Protect Intelligence Whistleblowers – Mieke Eoyang in Democracy Journal, and PEN America’s report Secret Sources: Whistleblowers, National Security and Free Expression (pdf; 40 pages)

Freedom of Information Act Reform: Here’s How the Senate Should Fix the FOIA Reform Bill – EFF

Cybercrime: Judges Struggle with Cyber Crime Punishment – The Hill


How Tor Works: Part One; Part Two – Jordan Wright

How Tor’s Privacy was (Momentarily) Broken, and the Questions it Raises – The Conversation

Shari Steele on Online Anonymity: Tor Staff are ‘Freedom Fighters’ – Guardian

IoT: DMCA and the Internet of Things and The Internet of Things that Talk About You Behind Your Back – Bruce Schneier at his Schneier on Security. See also: The problem with self-driving cars: who controls the code? – Cory Doctorow in The Guardian

Robots: Robots in War: the Next Weapons of Mass Destruction? – UCBerkeley professor, Stuart Russell; Related: What If: Robots Go to War? Davos World Economic Forum (video; substance begins at 3:40)

The Mobile Internet: 16 Mobile Theses – Benedict Evans

IP and Startups: Oculus Faces Messy Ownership Claims Over Its Head Mounted Display: Total Recall v. Luckey – Technology & Marketing Law Blog

Tech and Age Discrimination: Is Ageism in Tech an Under-the-Radar Diversity Issue? – FastCompany, and Here’s How to Start Closing Silicon Valley’s Age Gap – Steven Levy

General Interest

The Millions’ Great 2016 Book Preview and The Morning News 2016 Tournament of Books

What Sean Penn Teaches Us About How Not to Chat with a Fugitive – The Intercept; See also: How DEA Agents Took Down Mexico’s Most Vicious Drug Cartel – The Atlantic, and Censor or Die: The Death of Mexican News in the Age of Drug Cartels – Washington Post


FTC’s Native Advertising Guidance and Enforcement Policy

FTC Press Release – December 22, 2015

FTC Enforcement Policy Statement on Native Advertising: pdf (16 pages)

FTC Guide for Business: Native Advertising

News Reports:

FTC Issues New Rules for Native Advertising on the Internet – Re/Code

The FTC has Finally Given Some Specific Guidance on What Native Ads are Meant to Look Like – BusinessInsider

Trade Group Takes Issue With FTC’s Native Advertising Guidelines; IAB Says Some Guidelines are ‘Overly Prescriptive’ – Wall Street Journal


StudyGoing Native: Effects of Disclosure Position and Language on the Recognition and Evaluation of Online Native Advertising – Bartosz W. Wojdynskia & Nathaniel J. Evans (Grady College – University of Georgia), published in the Journal of Advertising. Study News Coverage: Consumers Can’t Tell Native Ads From Editorial Content

Academic PaperNative Advertising and Endorsement: Schema, Source-Based Misleadingness, and Omission of Material Facts (pdf; 23 pages) – Chris Jay Hoofnagle (School of Information, University of California, Berkeley, and School of Law, Berkeley Center for Law & Technology) and Eduard Meleshinsky (Bryan Schwartz Law)


Quote of the Day

“There is no argument whatsoever that the proliferation of devices and information are empowering. It is categorically true, not to mention obvious, that technology is today far more democratically available than it was yesterday and less than it will be tomorrow . . . . This is perhaps our last fundamental tradeoff before the Singularity occurs: Do we, as a society, want the comfort and convenience of increasingly technologic, invisible digital integration enough to pay for those benefits with the liberties that must be given up to be protected from the downsides of that integration?

Ray Kurzweil is beyond all doubt correct; within the career lifetime of nearly everyone in this room, algorithms will be smarter than we are, and they will therefore be called upon to do what we cannot — to protect us from other algorithms, and to ask no permission in so doing. Do we, like Ulysses, lash ourselves to the mast or do we, as the some would say, relax and enjoy the inevitable? What would we have science do? What are the possible futures you will tolerate? What horses do you want not let out of the barn?”

Dan Geer, ISSA Chicago

See also: The Risks — and Benefits — of Letting Algorithms Judge Us – Bruce Schneier op-ed at CNN


China’s New Anti-Terrorism Law and Encryption

Looking Backward: 2015; Looking Forward: 2016

Professor Eric Goldman’s Top 10 Internet Law Developments of 2015. In addition to his piece in Forbes, Professor Goldman also has a series of useful blog posts up at his Technology & Marketing Law Blog on 2nd half 2015 legal developments in a variety of internet/IP categories.

The State of the Law: 2016 – pdf of the slides from EFF’s Nate Cardozo’s Real World Cryptography Conference 2016 presentation.

AccessNow’s Five Predictions for Digital Rights in 2016

Peter Rojas’ Eight Questions About Virtual Reality in 2016 (and Beyond)

Georgia Tech Institute for Information Security and Privacy’s Emerging Cyber Threats Report 2016 (pdf; 17 pages)



Law, Tech and Policy

CISA update: Lawmakers Have Snuck CISA Into a Bill That Is Guaranteed to Become a Law – MotherBoard. See also: OmniCISA Pits DHS Against the FCC and FTC on User Privacy – Jennifer Granick at JustSecurity. And previously: Cyberlaw Professors Oppose CISA

Do Not Track: FCC Says It Will Not Require Websites to Honor ‘Do Not Track’ – Covington’s InsidePrivacy. Reaction: The FCC’s DNT Decision: The Right Call, For Now – EFF. See also: How ‘Do Not Track’ Ended Up Going Nowhere – Re/Code; Understanding ‘Do Not Track’: Truth and Consequences – Jason Kint at Re/Code; and Court Says Tracking Web Histories Can Violate Wiretap Act – Wired

CFAA: Court (2nd Circuit): Breaking Your Employer’s Computer Policy Isn’t a Crime – EFF; See also The CFAA Meets the ‘Cannibal Cop’ in the Second Circuit and Maybe Beyond – Orin Kerr at the Washington Post

European Developments: European Court of Human Rights says Blanket Surveillance is a Violation – ArsTechnica, and Did the European Court of Human Rights Just Outlaw ‘Massive Monitoring of Communications’ in Europe? – CDT. Also: European Parliament Rejects Amendments Protecting Net Neutrality – Verge, and The European Parliament Just Dealt a Major Blow to Net Neutrality – Business Insider

National Security Letters: See for Yourself for the First Time What User Data the FBI Demanded in a National Security Letter – Reason; and Scope of National Security Inquiry is Revealed – New York Times


The Growing Problems with the Sectoral Approach to Privacy Law – Daniel Solve at the Privacy+Security Blog

Key 2015 Privacy Papers Selected as ‘Must Reads’ for Policymakers – TAP

Predictive Policing: Microsoft is Building an App that can Predict Criminal Behavior – Business Insider. See also: The Constitution Can’t Defend You From Predictive Policing and Here’s Why – .Mic

Consumer Reviews: Senate Commerce Committee Approves Consumer Review Freedom Act – Technology & Marketing Law Blog. The Act was subsequently approved by the Senate.


Your Unhashable Fingerprints Secure Nothing – Hackaday

Let’s Encrypt has begun issuing free HTTPS certificates in its public beta

General Interest

Her Code Got Humans on the Moon and Invented Software Itself – Wired profile of Margaret Hamilton

26 Charts and Maps that Show the World is Getting Much, Much Better – Vox

Write Like You Talk – Paul Graham

The Interactive, Annotated Edition of ‘Bartleby, the Scrivener’ You Always Wanted – Slate

The Entire Season: An Elegy for Charlie Trotter – Matthew Gavin Frank writing at Electric Literature

  “At least twice in human history, individual people decided to avoid global nuclear war: [one], [two]” – Jeffrey Paul (@sneakdotberlin): October 26, 2015. See also: Newly Declassified Documents Reveal How America Missed a Major Nuclear War Scare – The Week


EU Deal on New Data Protection Rules

Press Release from the European Commission

EU Directive (pdf – 106 pages – of the “Directive on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data”)

EU Regulation (pdf – 209 pages – of the consolidated text of the draft General Data Protection Regulation to replace 1995 Directive)

News Reports:

EU Strikes Deal on Data Protection Rules; Agreement is the Biggest Overhaul of European Privacy Laws in Two Decades – Politico

Europe Approves Tough New Data Protection Rules – New York Times

EU Officials Reach Agreement on Text of New Privacy Law; Deal on EU Privacy Law Caps Four Years of Haggling, Lobbying – Wall Street Journal


Ten Implications of the New EU General Data Protection Regulation – Daniel Solove at his TeachPrivacy

People Aren’t Happy with Europe’s Tough New Rules for Data Protection – Business Insider

New EU Privacy Rule Could Cost U.S. Firms Billions – USA Today