We spend much of this episode of the Cyberlaw Podcast talking about toxified tech – new technology that is being demonized by the press and others. Exhibit One, of course, is "spyware," i.e., hacking tools that allow governments to access phones or computers otherwise closed to them. The Washington Post and the New York Times have led a campaign to turn NSO's Pegasus tool for hacking phones into a radioactive product. Jim Dempsey, though, reminds us that not too long ago, in defending end-to-end encryption, tech policy advocates insisted that the government did not need to mandate access to encrypted phones because they could just hack them instead. David Kris joins in, pointing out that, used with a warrant, there's nothing uniquely dangerous about hacking tools of this kind. I offer an explanation for why the public policy community and its Silicon Valley funders have changed their tune on the issue: Having won the end-to-end encryption debate, they feel free to move on to the next anti-law-enforcement campaign.
That campaign includes private lawsuits against NSO by companies like WhatsApp, whose case was briefly delayed by NSO's claim of sovereign immunity on behalf of the (unnamed) countries it builds its products for. That claim made it to the Supreme Court, David reports, where the U.S. government recently filed a devastating brief that will almost certainly send NSO back to court without any sovereign immunity protection.
Meanwhile, in France, Amesys and its executives are being prosecuted for facilitating the torture of Libyan citizens at the hands of the Muammar Qaddafi regime. Amesys evidently sold an earlier and less completely toxified technology – packet inspection tools – to Libya which is alleged to have tracked down dissidents with it. The criminal case is pending.
