Loading summary
Transcript114 lines
- [00:01]
A
The following podcast contains advertising to access an ad free version of the Lawfare podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com lawfair also check out Lawfare's other podcast offerings. Rational Security, Chatter, Lawfare, no Bull, and the Aftermath.
- [00:32]
B
I can't believe they're having a gender reveal for their dog.
- [00:35]
A
No, no, no, no.
- [00:35]
B
This is a breed reveal. Oh. So, yeah, they're finding out the breed.
- [00:40]
C
Of the puppy they're rescuing.
- [00:42]
B
So they could just be spending all their money on, like, pet insurance. Instead, we got Lemonade for Roscoe and it covered vaccines, microchipping. We saved 90% on vet bills.
- [00:51]
D
Oh, here we go.
- [00:54]
B
What do you think beige confetti means? I don't know that we'll never get this Saturday back. Get a quote for any breed@lemonade.com Pet.
- [01:02]
E
Hi, I'm Darina, co founder of OpenPhone. My dad is a business owner and growing up, I'll never forget his old ringtone. He made it as loud as it could go because he could not afford to miss a single customer call. That stuck with me when we started OpenPhone. Our mission was to help businesses not just stay in touch, but but make every customer feel valued, no matter when they might call. OpenPhone gives your team business phone numbers to call and text customers, all through an app on your phone or computer. Your calls, messages and contacts live in one workspace so your team can stay fully aligned and reply faster. And with our AI agent answering 24. 7, you'll really never miss a customer. Over 60,000 businesses use OpenPhone. Try it now and get 20% off your first six months@openphone.com tech and we can port your existing numbers over for free. Open Phone. No missed calls, no missed customers.
- [02:05]
B
Mike and Ray, I'm very embarrassed that I'm coming to you from my incredibly messy bedroom. And I feel like a need because you both have very civilized, professional books behind you and you look very professional that I don't actually live my life the way my background resembles right now or spring cleaning in the summertime.
- [02:23]
D
You can't see what's over here. There's like, there's kid pajamas in that corner and there's like a camping bin that I didn't put away on the floor.
- [02:31]
C
And I, I feel bad. I just have the standard Abraham Lincoln.
- [02:35]
B
I. Your bookshelves fill me with envy. I'm not gonna lie as somebody who has put together their own bookshelves occasionally, not for my came with the house. Hey, there you go. That's the dream. That's the dream.
- [02:47]
A
I live my life exactly the way my background looks.
- [02:51]
B
It is true, you do appear to have a series of empty pots which I know have the remains of dead plants in them because I've seen them from the inside. You can't tell from a camera. And then a statuary of some sort of Russian man. Is that Lenin? I can't tell from here. It looks very Lenin esque.
- [03:06]
A
It's Ho Chi Minh.
- [03:06]
B
Oh, Ho Chi Minh. Well, you know, not the wrong ballpark. At least I got it up about the same spot.
- [03:13]
A
Foreign.
- [03:19]
B
And welcome back to Rational Security. I am your host, Scott R. Andersen. Thrilled to be back with you for another episode of the podcast. Re invite you to join members of the Lawfare team as we try to puzzle through the week's big national security news stories. And I'm thrilled to have a new set of all stars, a set of relatively newcomers to the Lawfare family, one not quite actually technically in the Lawfare family yet, but imminently arriving to talk over the national security news. But people who know these issues better than most. Starting off with our lineup this week, we of course have Lawfare editor in chief and host emeritus Benjamin Wittes. Ben, thank you for joining us again this week. Of course, you wait with eager anticipation to see whether I will text you 24 hours before we record to see if you can join the podcast.
- [04:02]
A
I assume what I wait with eager anticipation about. I wait with eager anticipation when I sign on whether or not we're going to have to have a conversation about my dog shirt. And you know, like, it's always hit or miss.
- [04:18]
B
The weird thing is that we often have conversations about your dog shirts, even when you're not on the podcast. It's happened both times the last two episodes you were not on.
- [04:26]
A
I believe they so appall, Scott, that they become the subject of conversation whether or not I am present.
- [04:34]
B
They haunt my dreams. I live rent free in my mind. They're on the inside of my eyelids. It's true. And with that, not sure how you feel about dog shirts.
- [04:42]
D
They're great.
- [04:43]
B
We are thrilled to be joined as well by Lawfair contributing editor Rene Diresta for, I think a software appearance on the podcast something been on once or twice before. But thrilled to have you back on coming at us. Welcome, Renee. We're thrilled to have you back on the podcast.
- [04:56]
D
Thanks for having me.
- [04:57]
B
And joining us for the very first time, we have Lawfair's incoming public service fellow FBI agent extraordinaire veteran man with many insights into the national security world already staring with us very generously, even though technically not on the payroll Quite yet, Mr. Mike Feinberg. Mike, thank you for coming on the podcast for your inaugural Rational Security appearance. Hopefully not the last.
- [05:16]
C
Happy to be here.
- [05:18]
B
So we'll see if I can do hopefully not the last. That one's on me at this point for the most part, I will say, but thrilled to have you on board to talk through a couple of stories, many of which are very much up your alley and in your particular background. Our first topic for this week, an old fashioned anti raid former Trump National Security Advisor turned Trump critic John Bolton got a very rude awakening this past week when the FBI conducted a raid at his home, reportedly on the grounds that he is believed to have retained classified information from his time in office, among other somewhat less well defined allegations. It's the latest in a recent spate of well publicized investigations targeting Trump's critics and enemies, including a series of mortgage fraud investigations into Federal Reserve Governor Lisa Cook, who Trump recently purported to remove from office for cause on that basis, New York Attorney General Letitia James, which coincided with a photo shoot with Justice Department official Ed Martin outside of her home, and Senator Adam Schiff. How big a threat are these sorts of investigations to Trump's enemies and what will their long term implications be for the justice system? Topic 2 Uncleared and present Danger Last week, Director of National Intelligence Tulsi Gabbard pulled security clearances from 37 current and former national security officials on the purported grounds that they had, quote, abused the public trust by politicizing and manipulating intelligence, leaking classified intelligence without authorization and or committing intentional egregious violations of tradecraft standards, unquote. Those affected range from current senior intelligence officials to former officials who have been out of government for years to current senior congressional staffers. What are the consequences likely to be of Gabbard's actions and what does it show about how the Trump administration is managing national security agencies? And topic 3 Blue Sky Thinking in response to a state law mandating age verification for anyone seeking to use social media platforms in the state of Mississippi, Blue sky is opted to shut down its services there. What does this sort of response tell us about the trajectory of state and federal regulations and what the impact might ultimately be for the Internet? So for our first topic, Ben, unsurprisingly I want to start with you because you are in many ways where this story started as technically the person, though the New York Post has refused to acknowledge it. Technically the person who did break the story of the John Bolton raid on Dog Shirt Daily and Lawfare and the Bulwark, I believe, substacks with a live stream. A few days ago, I caught the tail end of that live stream. It was fairly dramatic. Talk to us a little bit about what you saw, what the context we subsequently learned about this raid was, and how it fits with your long history of observing the FBI and other law enforcement agencies engaging in this sort of conduct in the past, where at least the allegations center on the idea that Mr. Bolton retained classified information from his time in government at this point, five years ago, more than five years ago. Talk to us a little bit about what we know about this raid so far.
- [08:02]
A
Yeah. So what we know about it is relatively little, save what the FBI, senior officials apparently, if you believe the New York Post, are dumping in the New York Post, which of course is designed to be as unflattering to John Bolton as possible. Look, what we know is what I saw was a fairly conventional looking search warrant execution. The area in front of Bolton's house was cleared and sealed off by Montgomery County Police. They later let people in, but that was after I had already left. The FBI then showed up with a number of vehicles and they presumably presented Bolton or whoever was at the house with a search warrant. There are subsequent pictures of them carrying out boxes of stuff. The impetus for the warrant appears to have been a classified information investigation that was either depending on what stories you believe and how credulous you are of the FBI's rampant leaking about this subject. And by the way, I don't say I don't normally accuse the FBI of leaking. These are stories that are attributed to senior FBI officials. Right. The sourcing could not be clearer. So either the New York Post is just lying about how they got this information, or somebody at the FBI at the fairly senior levels is talking about the fruits of, of this raid and some of the evidence that would have been presented in camera to a judge that's behind it and emanating from the book that he published that bolton published in 2020 that was very unflattering to President Trump and that involved the Trump administration claimed a bunch of classified information that was investigated at the time, and the Biden administration decided not to pursue charges on that. There has also been a suggestion that I have no, there's no really independent reporting about only this sort of derivative stuff from bureau leaks, that there's some other matter that Bolton was involved in involving sending very highly classified material from his White House desk to his wife. And daughter, and that this is separate from anything related to the book. I don't think we know at this point enough to say whether John Bolton is an innocent victim of a critic of the administration who is being retaliated against because of his criticism of President Trump, or whether it is really that he was a abuser of classified material and got away with it until now or some combination of the two. Right. It's possible that this is an area where the previous administration behaved with some lenity and the current administration is not. That is what we know. At least what I feel like I know. On the Bolton side of the equation. On the FBI side of the equation, we know more. And the reason is that, you know, frankly, I was standing there and watched it. And the sequence of events as I saw it were that at 6:55am the Montgomery county police sealed off the street. And that's when I knew something was happening. Eight minutes later, that is at 7:03, Kash Patel tweeted, effectively that the thing was happening. He tweeted, no one's above the law. FBI agents on mission or something, didn't mention Bolton, but made clear that something was happening. And a few minutes after that, the New York Post, which was not present, by the way, at least that I could see, ran their story saying that the FBI was executing a search warrant at Bolton's house. And so I don't think there's any way to understand that sequence of events except to say that, you know, part of the point of this exercise was to give it to the New York Post right away so that, you know, they could humiliate John Bolton. And that's, you know, deeply different from, say, the Mar A Lago search, which became public because Donald Trump, the subject of the search, tweeted about it. And so I do think there's a big messaging component of this on the Bureau's part, and that is, I think, true, irrespective of whether Bolton is friend or fiend.
- [13:38]
B
So there's one aspect of this I think it's worth mentioning, as I understand, although, Mike, I want to come to you to correct me, as I understand it, there were actually two raids. There's the one Ben saw at John Bolton's home, which is in Bethesda, Maryland. Then there was another one in an office downtown in Washington, D.C. at least it's been reported. And presumably both of these, by my understanding, by reporting, were court authorized. So the FBI would have had to go make a showing to a court to get authorization, a warrant for these searches in Two different jurisdictions. So it would have had to pass to muster and demonstrate a probable cause, probably on the basis of affidavit, maybe some supporting evidence from investigators. So, Mike, I want to come to you and talk to us about what we know about this that looks maybe more conventional and what looks unconventional. From your extensive experience handling investigations, I suspect many of which may have looked a bit like this. You know, parts of this, like, as Ben noted, the publicity element jumps out as a little strange for him. But I'd be curious about your perspective on that. I'd be kind of perspective about, you know, the obvious conclusion people are jumping to on this is that this was entirely fabricated. This is a politically motivated action. There's obviously a big spectrum between entirely fabricated and, you know, dead to rights, violation of the law that anyone feel compelled to prosecute. It's not just a binary. So talk to us about what we know about where on the spectrum, the range where this might fall based on what it is procedurally and how we've seen different actors react to it so far.
- [15:09]
C
So before I articulate my own thoughts, I really do want to foot stamp what Ben said at the beginning of his comments, which is there's a lot we really don't know here. And the instinct of a lot of people, I suspect a lot of our listeners when they first heard the news of this raid, was to assume that it was politically motivated. I would just humbly suggest until we know more facts, we should have a little bit of trepidation about Bolton's innocence. And the leadership of the FBI. And DOJ should probably exhibit considerably more trepidation about his guilt before they hop on Twitter. That's the most abnormal thing about it to me. I spent the better part of two decades in the FBI working cases exactly like this one, and I am unaware of a single instance where the director, the Deputy Director, or the Attorney General tweeted or otherwise spoke about an ongoing investigation before there was a formal charging document. It's even more irregular because the tweets came out while the raid was still ongoing, which has at least the potential to impact agent safety. If you're doing a raid, you generally don't want a ton of people showing up there. And that's not because you're trying to be opaque or trying to obfuscate what you're doing. It's simply you have to control the scene while doing the search. And there's a lot of limitations, rightly so, on how you could handle bystanders or observers. And it's just one More headache. So for a senior executive to put the agents executing the warrant in that position is really weird. Other than that, though, the actual mechanics of the raid struck me as pretty normal and par for the course. I saw some chatter online and in a couple stories that it was supposedly highly irregular that that they did not do a consensual search, that they went to the trouble of getting a court order doing a consensual search would have been more out of the ordinary. If this is a mishandling classified information case, a raid is much more the SOP than a consensual searches.
- [17:42]
A
Can I ask you about that?
- [17:43]
C
Yeah, of course.
- [17:43]
A
Because like, I was one of the perpetrators of the idea that there's something weird about doing this as a, as a non consensual search or even without a. Just not by subpoena. It seems to me that what you're saying is certainly correct with respect to anything where you suspect espionage or gross misconduct. But there are these senior level mishandling cases, notably Joe Biden, Mike Pence, Hillary Clinton, where you know, you're not suspect, you don't suspect that there's espionage going on. They're not stiffing you. Oh, Donald Trump at Mar a Lago initially was done by subpoena. And normally in those situations, at least in recent times, the pattern, it seems to me, has been to go to them and say, hey, we think there may be classified stuff at your house. And everybody except Donald Trump says, oh, come and look, you know, and you do it by consensual search. And in Trump's case, you do it by subpoena until you know he's stiffing you on the subpoena. And so my question is, isn't there a senior official exception to the rule that you just articulated about doing it by search warrant?
- [19:22]
C
I don't think so. I would distinguish the cases you mentioned into a couple categories that don't really fit here. The Joe Biden and the Mike Pence consensual searches were done under a special counsel. They were not done under the normal bureau NDOJ chain of command. And special counsel investigations tend to be a bit more politically tricky just by their very nature. And as a result, the executives in charge of them tend to tread a little more lightly than you would in a case just involving a regular U.S. attorney's office. With respect to the Clinton email investigation, I can tell you from being in the counterintelligence division at that time, the notion of proceeding by consent was very much not without controversy. And I'm not Out of respect for the people who work that, who are still in the organization. I'm not going to get into the weeds, but nobody should walk away with the impression that everybody on the investigative and prosecutorial team was happy about the fact that they were not doing court orders searches.
- [20:37]
A
Gotcha.
- [20:38]
C
And then with respect to Mar A Lago, like, everybody knew that was going to be a shit show and everybody knew it was going to be politicized by Trump and his allies. So to preserve the notion of legitimacy in the public eye, I think they were probably over cautious in moving slower and more hesitantly than they would in any other case.
- [21:03]
A
Case.
- [21:04]
C
Most mishandling classifications, cases. General Petraeus, for example. A number of high ranking Deutsch.
- [21:12]
A
Yeah.
- [21:13]
C
A number of high ranking State Department officials over the past decade and a half. You know, these are done by searches. And that's basically because you don't want to take the chance that the person's going to know you're coming and destroy evidence. Consensual searches in the overwhelming majority of cases, including national security mishandling cases are very much the exception to the rule.
- [21:38]
B
And Mike, I want to dig into one more technical detail of this because I think I could be wrong. I think most of the statutes that these offenses are usually prosecuted, I think still have a standard five year statute of limitations. Right.
- [21:50]
C
Espionage act would have 10, I believe.
- [21:53]
B
Okay. So maybe they're intending to do an Espionage Act.
- [21:55]
C
But that raises an interesting point. Point. There's been nothing in the media leaked or official or even rumored anywhere, including on the most politically active far right or far left websites, to allege that John Bolton transmitted anything to a foreign power. So that sort of takes the overwhelming majority of the Espionage act off the table. His book came out in June 2020. So I'm not quite like, I don't think that would be within a five year statute for mishandling. So I'm, I'm really curious as to what they're actually looking at here.
- [22:40]
B
I was trying to figure this out. Would it have to be. They'd have to be trying to charge retention of a classified document as opposed.
- [22:45]
C
To that it was some sort of ongoing.
- [22:47]
B
Yeah, yeah.
- [22:48]
C
That doesn't necessarily totally jibe with what has been alleged in the media. You know, I've heard a couple things from a couple different sources. One is that he emailed information from his White House office to his family members.
- [23:04]
A
But that's not ongoing.
- [23:06]
C
That's not ongoing. And even if that's. That may be true. But like anybody who's actually worked in a government office will know that the classified documents are generally not kept on accounting computer system that you can email outside parties from. And had he scanned it in to an unclassed system and then emailed it, you know, there's all sorts of technical safeguards for that. So that doesn't sound right to me. The New York Times had some really brief reporting that there was a foreign government tip that John Bolton had classified materials of some sort. I'm trying to think under what possible set of circumstances a foreign government we trust enough to act on their intelligence would be up on John Bolton's communications to know that just, there's a, there's a lot here we don't know and that doesn't make sense. So while I have zero problem criticizing the FBI executives who were posting about this on Twitter, like, I'm a little reluctant to wade too into the weeds of trying to hypothesize about what the underlying facts are.
- [24:23]
A
Yeah, I just, I want to. That's the point. I want to come back to that. If it comes out tomorrow and there's an indictment of John Bolton and it contains shocking facts, that is consistent with the underlying facts that we know. If there is never an indictment of John Bolton, that is also consistent with the underlying facts that we know. And my point is that what is not consistent with normal Bureau practice is, number one, the immediate disclosure of an ongoing search warrant execution, and number two, the subsequent self justification by the Bureau from the highest levels of the Bureau barely anonymously to a newspaper justifying what it did. I do think when the Bureau behaves that way, they properly get a lot of scrutiny. And I suspect, by the way, that they will get a lot of scrutiny from, you know, an irritated magistrate who will want to know why all that stuff was in the New York Post. But I do think it is too early to say that John Bolton is either, you know, an innocent victim of the administration's malfeasance or, you know, some kind of, you know, abuser of the classified system. And also, you know, porque no los dos. Right. You can. The two can be true at the same time.
- [26:08]
B
Well, let me, let me expand the aperture a little bit because this actually is just kind of the highest profile and most sensational of a couple of investigations, maybe overstating it, a couple of early stage law enforcement actions that we've seen hinted at in the last few weeks. The three other big ones I'm aware of are all have originated with allegations of mortgage fraud coming from, at least in one case, a full on criminal referral. The other two, I can't remember whether it was a full on referral or not, but it's been discussed. I think there was at least in one of the other cases of Letitia James. We've seen the Federal Housing Finance Agency, which is led by a gentleman named Bill Pulte, who at least is reported by the New York Times, is a fairly prominent booster of President Trump, has a large social media following, has been a supporter for a long time. And we've seen these referrals regarding alleged inconsistencies on mortgage paperwork that at least in the view of this agency, could rise to the level, or maybe does rise to the level of mortgage fraud, leading to formal referrals of Lisa Cook, a Federal Reserve governor, member of the Board of Governors, who President Trump is now, as of today, purported to remove for cause on the basis of this allegation against Letitia James, New York Attorney General. Of course, we also saw Ed Martin, a Justice Department official, do a very strange photo shoot outside of his house and suggest she resign as a sign of good faith, whatever that means. And then also Senator Adam Schiff, a kind of longtime standing, probably the most prominent congressional enemy or rival or critic of President Trump, given his involvement in prior impeachments. So talk to us a little bit about where this fits in the process. Let me start with you, actually on that, Mike. All I've seen paperwork wise on this are referrals from this agency. How common is that? A and what happens from there? I mean, what is the point where it's usually treated as maybe presumptive within the executive branch, that there's a basis for something that might have happened of a criminal nature here? And what steps would you expect to see after that referral before the government starts relying on the idea that, yeah, there's at least probable cause, it's not something more, that something unlawful has happened here, as presumably you would have, you would require if you were to remove someone for cause on the basis of these allegations.
- [28:27]
C
Yeah. So referrals from other government agencies happen every day, if not hourly, for various criminal conduct or alleged criminal conduct. When you receive one of those as an agent or as an executive or as the chief division counsel of the office, like, you still give it an independent scrub for both. Like, is this activity actually illegal? Does it meet a threshold worth the FBI's time? And are there enough facts alleged in the words of our policy, like, is there an articulable factual allegation that a crime has or may be occurring? You know, mortgage fraud is something the FBI gets referred to quite often. What does not happen often is in a compressed period of time, an agency that most people have never heard of refers three very prominent critics of the presidential administration to be investigated. And without seeing the underlying documentation that was provided, it's very difficult for us to say whether this is totally specious or whether there is a there there. I have personal knowledge of one of these cases. I'm not going to get into the details, but it seemed thin to me at least. And you know, we talk a lot about the presumption of regularity within the judicial system that the government enjoys. I don't know that the FBI, which in an ideal world should be a quasi independent agency from the rest of the executive, should be granting a presumption of regularity for the criminal referrals it's getting from other cabinet and senior executive officials appointed by the administration.
- [30:28]
B
Ben, let me come to you on this, too. You know, this is obviously there is a media element when you're doing a photo shoot in front of, you know, the target of one of these referrals home without their consent, when you're publicly calling for their resignation, has happened with both Lisa Cook and with Letitia James and maybe Adam Schiff, too. Well, I don't recall specifically seeing it. No, that's not going to go anywhere. You know, there is obviously a big public relations spin element of this. How much of this is that kind of PR game and how much is leading into other legal avenues, whether it's ultimately criminal prosecution. Although it's worth noting, and I'm curious whether you agree with this. I think there are substantial barriers to be able to get anything these things to prosecution, whether it's opening a formal investigation. I actually am curious about the additional barriers there. But there are some, or in the case, as we're seeing in the case of Lisa Cook, other uses of this essence for legal purposes, in that case, for cause removal, although that's kind of unique to her position. Talk to us a little about where this fits into this bigger puzzle.
- [31:28]
A
It's not a puzzle. It's a very simple thing. Look, a lot of people fudge their mortgages in small ways. That's pretty normal. Whether it's proper or not, it's not surprising at all. It's very common. And a pattern in which you go after and look for such improprieties in the opposing party and people you want to get out of government is a classic abuse of government. And I don't care if some of those People may have improprieties in their, in their mortgage applications. It is a gross misuse of government. It is precisely the way the Housing Administration and the FBI should not be being used. And in some of the cases, it's plainly not turned up meritorious question, you know, issues. So I think it's one of the more disgusting examples of. And the fact that Ed Martin is out there posing in front of people's houses and calling on people to resign, which is something the Justice Department, department should essentially never be doing, except maybe in situations like Spiro Agnew and, or Eric Adams or something, you know, in the, in the highest of corruption, indicted corruption cases. I don't think there are many situations in which the United States Department of Justice should have anything to say about who is the Attorney General of the State of New York or who is a member of the Federal Reserve Board. And so I, I don't think it's a complicated situation. I think it's just an abuse. And that's not to say that all of their mortgage applications were pristine. I have reviewed none of them. But as with Bolton, I would say if you want to accuse him of something, show me the money. You know, put down an indictment and will evaluate it. But until that happens, I'm not starting. You have no business demanding a resignation from Letitia James or, you know, doing an investigation like this in order to justify a for cause removal by the President.
- [34:11]
C
It's interesting too to me that we're talking about mortgage fraud allegations, because I think it's important to note that mortgage fraud, along with most white collar crime, is the very thing that the FBI and DOJ are actively deprioritizing. The prosecution of the overwhelming majority of large offices in the FBI are collapsing their entire white collar program to shift resources over to immigration enforcement. So, so it's curious to me, as somebody who saw that going on at the senior executive level, why we're going after political opponents for mortgage fraud, but telling agents that's not an important violation to work when it comes to the general public.
- [35:01]
B
Well, speaking of allegations and referrals from within the government, we saw another set of actions take place on the basis of basis of a series of allegations. This past week, 37 current and former intelligence officials, a range of individuals, people who worked in the White House, many of whom were no longer in government, some of whom were no longer in the executive branch, but were now staffers in Congress, a number whom were still senior intelligence community officials, all had their security clearances purportedly rescinded or Revoked by the Director of National Intelligence, Tulsi Gabbard, on allegations that they had engaged in a range of incidents. Misconduct from disclosing classified information, mishandling it. Misgivings of tradecraft or inappropriate tradecraft is a phrase that she used in some social media communications. Not sure what exactly that implies. Variety of sort of allegations. The nest of people implicated by this is wide and strange. There's a common thread for many of them, which is the signature that they were signatories on a letter late in the first Trump administration indicating essentially that there was some basis for some of the allegations that ultimately led to the first impeachment attempt related to Ukraine against Mr. Trump or President Trump. But nonetheless a bunch of other random people found their way in here as well. And when at least, at least according to reporting, one senior intelligence community official asked Tulsi Gabbard, Director of National Intelligence, for the information regarding the removal of the security clearance and the basis for it for one of those cities, senior officials was still in government, they were denied sharing the basis of it. So it's not clear exactly what the basis for this action is or what exactly Dni Gabbard has I want to contextualize this a little bit because of course this is all coming off of a long history we have about targeting people who have bought into or reinforced or engaged with some of the big narratives of the first Trump administration about the 2016 election, about relationship between Trump and Russia, about that intersected with Ukraine conflict late in his administration. Rene, you've studied these narratives like few others and are very familiar with them. Talk to us about where you see this development fitting in the ecosystem of actors and narratives that has really grown up around this whole issue set in the last five years.
- [37:19]
D
Yeah, so there was obviously a number of different investigations into the 2016 election, beginning with the Now I guess the thing that everything is focusing on the 2017 Intelligence Community Assessment that found that the Russians had interfered in the 2016 election. They laid out how the Russians had interfered in the 2016 election. So the social media propaganda campaigns of the Internet Research Agency, the hack and leak operations of the gru, military intelligence, and then the folks efforts to actually change votes to hack voting machines which were unsuccessful but attempted. And those efforts were also attributed largely to the gru. So there were multiple different strategic types of attempts. The ICA also discusses overt propaganda in the form of things like the Russia Today. So the sort of propaganda campaigns happening through Russia Today. So there's a number of different things that go into it now this is in January of 2017. So things like the scope of the social media influence operations were not yet known because the platforms hadn't gone looking for it yet. I think actually that one might not have been in the ica. Allusions to troll factories and Russian trolling were, but not necessarily the specifics. So over time, a lot of the claims in the ICA are further borne out by subsequent investigations that happen over that multi year period that you're describing. Also, in addition to the interference investigations, there are then the collusion investigations which ask the question, did the campaign know was the campaign involved the Trump campaign? Because one of the things that the ICA says is that in addition to doing this to sow discord, that Putin over time developed a preference for Trump and that in addition to denigrating the candidacy of Clinton, they find with high confidence that the that there was a preference for Donald Trump. This is written into the assessment. Two agents agencies, the CIA and the FBI state this with high confidence. The NSA states it with moderate confidence. That statement, that statement of preference is the thing that Tulsi Gabbard has been harping on now for the last month. She alleges that there was no evidence of that whatsoever and that President Obama dictated that the intelligence agencies find evidence of interference and write this report and find evidence of a preference and make this claim. Now, just to be clear, in all of the documents that she has released to support this allegation that she is making, there is no evidence that Obama did that at all. She has declassified things like principals meetings that do not mention the word Trump. Right. There is no evidence that he has dictated any form or finding. He has since simply told them, please produce this intelligence community assessment, please produce this report detailing how Russia interfered in the election. She has gone through a variety of moving goalposts. It's saying things like, well, they said the intelligence community said that Russia hadn't interfered, but then they said that it did. And when she says something like that, she means they hadn't hacked voting machines, which they didn't. But then when they said that they interfered, they were talking about the hack and leak operation and the propaganda campaigns. So she uses a lot of rhetorical sleight of hand. There's a lot of things that she says in her press releases that are not borne out by the documents themselves. And she has now gone through multiple of these waves of document releases, again alleging constantly that there was no evidence that Putin preferred deferred Trump. So that's on the interference side. On the Collusion side. There were a series of different investigations that tried to see whether the campaign knew about it. A lot of these in turn have focused on was the Steele dossier used to justify those investigations. The collusion investigation at the FBI was launched prior to the FBI having the Steele dossier. It was launched based on a tip from Australian intelligence. So, again, chronologically speaking, Gabbard has no leg to stand on here, but she's just sort of throwing chum in the water, trying to create this perception that maybe they over relied on the Steele dossier later and in other ways to try to imply that the investigation itself was started because of a political vendetta that Obama had. So these, these are the sorts of things that she is doing. So this revocation of the clearances of 37 current and former intelligence officers is framed by her as being a continuation of her investigation into what she calls an egregious, treasonous, seditious conspiracy to go after Donald Trump because of the 2016 election. And she alleges that these people on this list were somehow involved in this, you know, this plot to frame Donald Trump to imply that the Russians wanted him. And it's, it's bizarre because some of these people don't appear to have actually worked on that and some of the people who are known to have worked on the ICA are not on this list. So it's, it's again, that sort of sleight of hand where what she is saying and what she is doing and the documents and the names that she is putting out into the world do not comport with the facts of who actually worked on the thing or what she is saying happened. So that's again, yet again, we're in this world where Tulsi Gabbard doesn't seem to understand linear time or seems incapable of making her evidence line up with her allegations.
- [43:01]
F
AI is transforming customer service. It's real and it works. And with fin, we've built the number one AI agent for customers customer service. We're seeing lots of cases where it's solving up to 90% of real queries for real businesses. This includes the real world, complex stuff like issuing a refund or canceling an order. And we also see it when FIN goes up against competitors. It's top of all the performance benchmarks, top of the G2 leaderboard. And if you're not happy, we'll refund you up to a million dollars, which I think says it all. Check it out for yourself at fin.
- [43:30]
G
AI, why choose a sleep number?
- [43:32]
D
Smart bed can I make my site softer?
- [43:34]
B
Can I make my site firmer? Can we sleep cooler?
- [43:38]
G
Sleep Number does that cools up to eight times faster and lets you choose your ideal comfort on either side. Your Sleep Number setting It's the sleep number biggest sale of the year. All beds on sale up to 50% off the limited edition smart bed plus free premium delivery with any smart bed and adjustable base ends Labor Day. All sleep number Smart beds offer temperature solutions for your best sleep. Check it out at a Sleep number store or sleepnumber.com today.
- [44:01]
E
Hi, I'm Dorina, co founder of OpenPhone. My dad is a business owner and growing up. I'll never forget his old ringtone. He made it as loud as it could go because he could not afford to miss a single customer call. That stuck with me when we started OpenPhone. Our mission was to help businesses not just stay in touch, but make every customer feel valued, no matter when they might call. OpenPhone gives your team business phone numbers to call and text customers, all through an app on your phone or computer. Computer. Your calls, messages and contacts live in one workspace so your team can stay fully aligned and reply faster. And with our AI agent answering 24. 7, you'll really never miss a customer. Over 60,000 businesses use OpenPhone. Try it now and get 20% off your first six months@openphone.com tech and we can port your existing numbers over for free. Open Phone no missed calls, no missed customers.
- [45:03]
B
So we know in a lot of other contexts we've seen, you know, outside actors weigh heavily in personnel decisions and related action. So we've seen, of course, Laura Loomer being the classic example of this, play a strong role in having people removed from the National Security Council and other prominent national security roles. Do we have a sense about where the narratives or the counter narratives that are justifying some of this are coming from essentially where this list of names might have originated, Especially because it is such a hodgepodge where many people have a nexus to this broader narrative of the Russia story, but not everyone clearly does, at least not from what we know of public information. Do we have a sense of whether she's leaning on a lumer list or something else, or is this something that looks like it's contrived internally by her and her team?
- [45:52]
D
Some of these people were on a loomer list that was circulating, but again, some of them were not. So this is a very strange, you know, put a bunch of names on a list, some of them aren't even spelled right. I mean, the, the Some of these people haven't had a clearance in decades.
- [46:09]
A
You mean Yael Eisenstein doesn't spell her name that way.
- [46:14]
D
She actually put out a statement today. So I think that we can. So we can reference maybe her statement, because now she has written on Twitter that she hasn't held a clearance in a little over a decade. So she was very surprised to find herself on this list. She hadn't worked on the Russia investigation, I believe she said, at all. So she was further surprised to find herself sort of pulled into this. This dynamic. I don't know if she was one of the signatories to the letter, but again, this question of who wound up on this list is surprising. A lot of people. Several people have come out and said, I don't hold a clearance, so I don't know why I'm on it. And I didn't work on the. The Russia thing, so I don't know why I'm on it. But this is where we seem to be.
- [46:53]
B
So I think we have to dig into a little bit of legal technicalities of these sorts of allegations of the actions. And there's sort of two parts of it, one of which I'm not sure the ODNI fully anticipated when she did what she did, which is the first is clearance revocation. That's clearly something she anticipated, even though in some cases it is a bit of a null set because they didn't have clearances in the first place. But I want to come to you on that, Mike. Then the second part is the question of what happens when you allege people are engaged in misconduct publicly as part of rescinding their revocations, which at least so far, we haven't seen much basis for for most of these people. Let me start with the clearances with you, Mike. Talk to us a little bit about what we know about the process that backs these clearances up and the opportunities that people who are facing challenges with security clearance, particularly for alleged mishandling of classified information, might not normally expect to have. And in particular here, we're talking about more, not the people who had clearances don't have any more. They presumably, I'm guessing, don't have any entitlement to them at this point. But current, I see executive branch officials and then current congressional staff, of whom at least two senior congressional staffers, one for Adam Schiff, aforementioned critic of President Trump, also had their clearances rescinded and revoked.
- [48:06]
C
It's very important for people to understand that if your agency or the executive branch in general wants to revoke your clearance. The deck is really, really stacked against you in terms of fighting that. And there are so many reasons for that. There is a line of Supreme Court cases granting essentially unlimited discretion to the executive branch and making these sorts of decisions. There is pseudoscience that could be very easily manipulated. Despite polygraphs not being admissible in most court, in almost all court circumstances, they are totally allowed when making security clearance decisions. And a skilled polygrapher can very easily tailor the test to make somebody fail or pass. There is the fact that once they revoke your clearance, they have a colorable claim that you can no longer see the information we use to reach that decision because you don't have the clearance. They put the people in a catch 22. There aren't a lot of options, really. And partly because of that, every prior administration since the modern classification system was created has used this power incredibly sparingly. We have never seen anything in US History. I guess the closest thing would be sort of the Red Sea scare in the 50s. But we've never seen going after people for political reasons, maybe ideological reasons. Like I said in the 50s. But this is really unprecedented in United States history, particularly. These people weren't going rogue. They weren't acting outside the scope of their employment. They were working on predicated investigations and sanctioned studies by multiple agencies throughout the US Intelligence community. It's important to remember that a lot of the collusion investigations that Renee made reference to occurred under the first Trump administration's Justice Department. Some started in the Obama administration. But, you know, Mueller's special counsel investigation was begun by Rod Rosenstein. So this is just one more deviation from norms and the leveraging of supposedly apolitical processes in order to punish political opponents.
- [50:48]
B
It's worth noting we know of at least one lawsuit challenging a priorification of security clearances. Trump. The Trump administration has done this for a number of priorities. Rivals. And that's by Mark Zaid, fairly prominent national security lawyer who I believe is actually representing or at least has been quoted in the cases, I think is as quoted as saying, representing some of the people release, consulting with them, who have appeared on the 37 individuals on the list.
- [51:12]
C
He has publicly stated he is representing some of them.
- [51:15]
B
Okay, that's why. That's what I recall. I was trying to look up the details as we were chatting, but good. So. So we're going to see some test of at least the full limit to that. He, of course, has an argument that he needs it for his job, for his livelihood, and there are due process implications of that of that sort of rescission. It's not a different sort of argument than many other people have might be in a similar position as government employees. So that's the clearance side of it. One other angle. Let's talk about the congressional staff side about this really quick. We've seen folks in Congress say this is an intrusion on the separation of powers. Do we have a sense about whether that is something that might actually be litigatable, an argument that might actually prevail in court? We do know that members of Congress don't have formal clearances.
- [51:59]
A
It's not plausibly litigatable. Normally the way this would be resolved in a functioning Congress would be member picks up the phone and says, look, if you strip my staff of their security clearances, don't expect any funds for the White House helicopter. And that's the way this stuff is normally resolved. And you know, you don't want me to have to put in an appropriations bill that, you know, you need to do hopscotch in front of the White House 33 times before we release the funds for ICE, do you? But you know, if Congress isn't going to protect its own prerogatives using the power that it has, the courts are not going to step in and say you must give, let's keep names out of this, you know, Adam Schiff's staff, a security clearance executive branch. That's not a matter of law, that's just a matter of comedy between the branches. I think.
- [53:06]
B
Well, and it's worth noting, I guess Congress in theory, most security clearances right now are a product of executive order and executive action, with the exception of circumstances, certain statutory regimes around nuclear information that are fairly narrowly applied. I think it's really just nuclear that has a statutory classification regime. It doesn't have to be that way. In theory, Congress could legislate a lot more about clearances. Who gets them, who doesn't entitled staff for access. It's just not a step Congress has ever had to take before or ever been inclined to take. But I don't think it's outside the realm of possibility legally. Does seem like it is politically, at least for the near term. So Rene, let me come to you on the other half of this, which is this reputational harm and what is arguably or could be potentially libelous allegations leveled against many of the individuals on this list, albeit in fairly broad terms by the DNI, DNI Gabbard, and by other private individuals potentially like Ms. Loomer, to the extent they're making these specific Allegations publicly who have fed into these sorts of processes. Have we seen any motion or effort or discussion about potentially pursuing claims around that? Because this is actually kind of a classic. Actually, I think it'd be slander in a lot of cases. Case. Right. Because it's somebody saying something that is a factual representation, harder to represent as opinion, although some of the stuff might verge into opinion, but not all of it. That has clearer repercussions for many of the people involved, if not all of them. And that is kind of like the standard fact pattern for slander claims. But we're not really seeing. At least I'm aware of. Not aware of any action that defamation says.
- [54:45]
A
Some of the.
- [54:46]
D
You know, some folks have said that. Some people on the list have said that they're retaining counsel and exploring their options. I hope that they do. I mean, I think at this point, you know, there is such a pattern of behavior here with allegations that are made about people at this point that are just beyond the pale. And there's just been such a pattern of take it and smile and move on. And I think that there is not going to be any shifting of behavior unless consequences are imposed and there's some sort of deterrent. And so I think at this point, particularly for the influencers on social media who go along with this, who instigate it, in fact, a lot of the time, you know, Ms. Loomer was pointing out that 27 of the 37 names on the list came from her, and she was very proud of that. So at this point, you know, I think that. That the people who are on the list should be calling lawyers and exploring their options.
- [55:33]
A
I would just add to that that it is worth focusing on the specific language that Tulsi Gabbard used in her statement announcing these. The stripping of these people's security clearances. She said, being entrusted with a security clearance is a privilege, not a right. Those in the intelligence community who betray their oath to the Constitution and put their own interests ahead of the interest of the American people have broken the sacred trust they promise to uphold. In doing so, they undermine the national security, the safety and the security of the American people, and the foundational principles of our democratic republic. This is why, at POTUS direction, ODNI directed the revocation of the security clearances of 37 current and former intelligence professionals who have abused the public trust by politicizing and manipulating intelligence, leaking classified information without authorization, and or committing intentional egregious violations of tradecraft standards. And the list of the people is then included underneath There. And so I, you know, leaving aside whether, you know, given that she purports to be acting at the President's direction, whether she can be held, you know, maybe cannot be held liable for having done the act. Right. Certainly the characterization of it and the factual characterizations of why she's acted against these people, those are factual statements that are either libel, slanderous or they're not. And I think if you were not somebody who betrayed your oath, leaked classified material, engaged in egregious, intentional violations of tradecraft standards or those sort of things, I think you would have an interesting claim. It's very hard to win a defamation action, particularly against the dni, but I would be interested to see it brought.
- [58:00]
D
Some of these people are also not public figures. Some of them weren't even publicly attributed, to my knowledge. These are not. These are not people who've been seeking the, you know, the public eye. So I think that, you know, my personal feeling is I hope they secure representation and go for it.
- [58:18]
B
Well, speaking of the use and abuse of social media, that brings us to our third topic. It has been an interesting week or two for the platform Blue Sky. It, along with many other social media platforms, was the target of a law in Mississippi, a law that is not alone among efforts by a variety of states to regulate access to various aspects of the Internet, social media platforms, media websites, particularly for those underage, imposing age verification requirements or certain other requirements to access those websites. But bluesky has taken a somewhat unique response to this. They have chosen to shut down access to BlueSky. A small but growing. Well, was growing for a long time. Maybe not so much right now, but a small but notable, and particularly notable in the last few months, social media platform essentially saying we're not going to provide services. They state in Mississippi as an objection to the law and the implications that it might have for the platform. And potentially they won't say this, but I suspect some of the operational elements that would take in actually implementing and complying with those requirements. So, Renee, talk to us a little bit about what led bluesky to take this action where it fits on the broader terrain of how platforms have responded to this law and similar legislation and just kind of what it tells us about the trajectory of both the regulation of the Internet and, and what the Internet's going to look like at the back end of that regulation.
- [59:44]
D
So this is related to a bill, HB 1126, I think in Mississippi. This is a bill that, that is, you know, there have been a number of these laws passed by Various states that try to prevent children from seeing bad online content. Some of them relate specifically to porn, some of them are broader. This particular one wants content companies, digital platforms, to collect age information from all users, not just those that are trying to access adult content. And there's a kind of. It's sort of comical actually. As a parent, I mean, don't get me wrong, I don't want my kids seeing bad stuff on the Internet. So I am actually somewhat sympathetic to the general principle of like, how do we make the Internet safer for kids? But this one requests how do you obtain parental consent? It says things like, you know, like requires the platforms to have a way for you to like set up a video call with the parent so that the parent can give consent. Or like fill out an online form and send it back somehow, like electronically, like fax it to them.
- [60:44]
B
Permission slips?
- [60:46]
D
Basically, yes. So kind of a rather interesting set of ways in which you can give parental consent for your child to use the social media platform and then to kind of implement measures that keep kids from being exposed to harmful content. And then non compliance can result in, of course, in penalties, I think up to $10,000 or something per violation. So a lot of these laws are halted as they wind their way through the courts. In this particular case, NetChoice. So this trade association did sue, they got a temporary restraining order, but then the 5th Circuit said that it could go into effect putting kind of a stay on the temporary restraining order. NetChoice appealed to the Supreme Court court to the shadow docket. And Kavanaugh explains. I actually pulled up the language on a separate tab because it was kind of remarkable. Basically explains that Kavanaugh says it's pretty obvious that the law is unconstitutional. Mike Masnik actually wrote something about this in Techdirk today. He is on the board of Blue sky, but he's been kind of following a lot of these cases and he has useful summaries of them. And what is interesting about it is that Kavanaugh says, to be clear, clear, it seems that NetChoice has demonstrated that it is likely to succeed on the merits, but they have not sufficiently demonstrated that the balance of harms and equities favors keeping the temporary restraining order in place. So he kind of says that the court will deny the temporary relief and so the law goes into effect. So it's kind of a weird decision as a non lawyer myself, but just following that, basically the Supreme Court says, yes, this law is likely to be struck down. Yes, this law is likely unconstitutional. But in the meantime, until we get there, we're going to let it go into effect. So for larger platforms, there are ways that they will take steps to think about how to protect children and how to actually do some implementation around age verification. Some of them have already done it. Blue sky, however, basically they put up a big post explaining why they have not built such infrastructure, why it is a lot for them to do, given that they're a very, very small team, small company, and how given that this is not something that is likely to stand, this is kind of a whole lot of work for them to do for something that is not likely to be something that is going to persist. And so what they had chosen to do instead is to IP block users in the state of Mississippi. So essentially, if you are in the state of Mississippi using a Mississippi IP address and you go to access Blue sky, you cannot access the service. So that is where. That is where Blue sky is in Mississippi at the moment. So I think that's roughly speaking the lay of the land of what has happened. There are a lot of these that are going to continue to come up because more and more states want to see this happen. There are more and more types of technology that make age verification slightly more feasible, but they come with major privacy trade offs. So there are a few different areas where you're starting to see tensions come into play between some groups of, you know, some activist groups saying you can do this, you just don't want to, and other groups saying there are a lot of privacy and surveillance shifts that will happen if we do this, and all users will have to show either biometric or data ID to gate it off from children. So that's another just broad spectrum reason why this has become such a hot button issue recently. I can kind of go into the three major concerns with this stuff. I don't know how deep in the weeds you want to go with this.
- [64:27]
B
Well, before we do that, I want to come back to the Supreme Court's recent decision on this because I think this is very interesting and weird. And Ben, I want to actually pull you in on this as you are a Brett Kavanaugh watcher of a quite a lineage. This is a weird opinion, the Net Choice opinion, because he does basically say, and I'm just going to quote the relevant language here, that choice does not sufficiently demonstrate that balance of harms and equities favors relief at this time, even though the law is likely to be unconstitutional. So it basically means that the balance of harms does not arise to the level that favors injunctive Relief in this particular case, no more explanation than that which has become a very common phenomenon. I think everyone who looks at the court is wrestling with this term, which is the shadow dark actions are getting very curse if any explanation, sometimes none at all. So what sense do you make of this? Do you have an idea about what this means? Because it obviously has relevance to the ability to get injunctive relief for any of these platforms against any of these laws or any of these cases, potentially. Because the equities, I suspect, are going to look pretty similar across different cases, at least the arguments the states are going to make. But given that these systems are difficult to implement, it basically gives all these providers a pretty difficult choice where they will either have to do what Bluesky has done and just cut off access, or spend the time and energy to develop these toolkits that a year or two down the line when the merits of this case are resolved, they're not ultimately going to need. So what's motive? Do you have a sense about what's motivating us, what Kavanaugh might be thinking about in this case?
- [66:01]
A
Well, I think you're laboring under the misapprehension that any justice of the United States gives a shit about the travails of companies in the course of content moderations. And there is a principle that all nine justices sign up for. It's actually in their Senate confirmation questionnaire, which is, I think the question reads literally, do you agree to delegate all of this garbage to Renee Diresta? And they check the yes box and that's how they get confirmed. And that way all of the, all of the content moderation stuff goes to Rene and to Kate Clonic and a few other people, and the justices don't have to think about it. And I'm only sort of joking here because the part of me that's serious is, look, there is no evidence that the justices, you know, have thought seriously about this stuff. And they grant cert kind of impulsively, and then these cases get up, and this was true in NetChoice and it was true in the Gonzalez case. And you know, and then you get these oral arguments where the justices are like, gee, this is kind of hard, and then they find some, you know, technical basis in which to send it back that doesn't really resolve all the issues or even any of the issues. And so what, what happens when, when they do that is exactly what you just described, which is that they put everybody in this kind of long term waiting game where we kind of don't know what the First Amendment means in this context. And we don't really know what 230 does or doesn't mean in this context. And we don't really know what states can and can't do. And so what we do is we, some of the companies make major investments and some of in content moderation capability and some of the companies just say Mississippi, heck, heck with them. There aren't that many people there anyway. And by the way, there are countries, there are whole countries where they do the same thing. And then of course everybody also knows that you can just get a VPN and access, you know, go through New Jersey from Mississippi. And so it doesn't actually prevent anybody from accessing any anything, just as these age verification schemes are kind of farcical, which is by the way also true of the entire European content moderation regime because anybody can get a VPN and go through the least restrictive jurisdiction. And so, you know, at some point we're going to have to kind of all accept that, that either we're going to establish some kind of regulatory harmony across jurisdictions and across ideologies or we're going to give up. And the places that, you know, the Mississippi's that really want to regulate access to online porn are going to have to give up. And the places that really don't want to have their people be compulsive gamblers, which I don't think Mississippi cares very much about, you know, they're going to have, there's kind of an arbitrage, a VPN arbitrage that goes on as a result of that. I don't think the problem is fundamentally resolvable unless everybody, all these different jurisdictions were to get together. And that includes, by the way, you know, Fiji. Right. Like, like if there's one weak spot, all the VPNs will just direct to there. So I, I'm not sure the whole thing isn't a fool's errand. I share Renee's concern as a somebody who once had teenage kids, they're not teenagers anymore, that there's things on the Internet I would like to have been able to protect them from. But you know, it's not actually doable.
- [70:34]
B
Yeah, well, so I just pulled up just a note of clarification here. Mississippi made an interesting argument in their opposition to the petition in this case, which the court actually does point back to. So maybe they're importing this argument, they're just doing it implicitly, which is that Mississippi actually argued that NetChoice or whoever NutChoice is representing in this case, the various platforms are only required by the Fifth Circuit or would only be required to impose commercially reasonable efforts by the law, not cost prohibitive ones. And they could make a showing as to what is reasonable given market conditions and the feasibility of different efforts. So maybe that's the next phase where other platforms will go to that next step and say, well, let's actually talk about what's feasible and maybe try and get some sort of judicial approval of it, as is implied that they have the opportunity to do in this Mississippi brief. I'm not sure, but obviously Blue sky chose not to take that measure.
- [71:27]
D
Yeah, I think, I think for them, they argued that, you know, any sort of efforts to build out a parental consent workflow was infeasible.
- [71:36]
B
So, Rene, talk to us a little bit about where this all leads in our last few minutes here. What are the big concerns about these types of laws? Where do they seem likely to go? I mean, it seems like they're likely to be unconstitutional, but there might be other efforts, efforts that might not, particularly if they're not as categorical, might rise and satisfy constitutional muster. But what are the broader implications for kind of the Internet as we know it, or at least platforms as we know them?
- [72:00]
D
There's a law that passed recently, I think I'm trying to remember the name they gave it. It was in Texas, HB 1181. It was a adult content Paxton, I think was definitely, I always think of it. I associate it with Paxton, the Texas adult content law. I don't know if it had a name beyond that, but that was specifically scoped around adult content websites. So very narrowly tailored type of content that was age gated. And that one was upheld where that, that sort of age gating, verify your id, you know, sort of prove your age. That one was, was actually upheld, if I'm not mistaken. And so this was very recent. This was sometime in July, June or July of this year. So basically arguing that minors don't have a constitutional right to access that kind of content and that the burden on adults is incidental and permissible. And so that particular area, they did find that that law held. So I think you're going to see other states pass things like that on the social media front. Again, a lot of platforms are supposed to be doing this voluntarily. A lot of them already have certain types of, of privacy and other types of gating functions to try to keep kids under 13 out. They will periodically throw up a validation screen trying to screen out users that they believe are behaving as if they are under it. There are ways in which they try to have verification come in in those moments. I think again that the question of like, should everybody have to verify? You start to see adult users get very concerned about the privacy and surveillance dynamics and the free expression concerns that happen as a result of that. And then there are also users who make the argument and civil rights, civil liberties folks who make the argument that kids should be able to access the Internet, they should be able to access social platforms, they should have access to information and that it's kind of too puritanical to be trying to gate them and keep them out of every everything. There's some debates on the technical front about should it be app stores who are doing this gating? Should that be where the verification lives as opposed to at the app level? Should it be something where it becomes a device level verification as opposed to an individual app level verification? Again, there are many, many debates that are happening about the nuances of that. Do you punt it up to Apple to do it? That could be a whole other podcast. People will get on and fight about that for hours. But. But these are the sorts of areas where you're starting to see the nuances and the fights get more serious even as the ability to do verification becomes more technically feasible.
- [74:45]
B
Wonderful. Well folks, that brings us to the end of our time together this week. But this would not be rational security if we did not leave you with some object lessons to ponder over in the week to come. In the week. You have to wait till we are back in your podcatcher. Ben, what do you have for us for an object lesson this week?
- [75:01]
A
Well, I have a fun gift that I received from the algorithm. One of the things about the algorithm based on like for me, like with everybody else, based on my habits, it recommends things to me and some of them are very far from my actual interests. It is convinced based on the fact that I, I know a lot of young Ukrainians that I am interested in buying a Ukrainian wife and you know, tries to sell me young Ukrainians on a regular basis. It also, you cannot release a new light or laser product anywhere on the Internet without my being notified of it very excitedly.
- [75:50]
B
Or tiny firearm or crossbow.
- [75:52]
A
I imagine exactly there are all kinds of things. But the other day I thought the algorithm really outdid itself. It informed me of solar powered sunflower lights made of course in Guangzhou in China. And of course sunflowers are a symbol of Ukraine. And I have a large garden of sunflowers outside of the Russian embassy which I used to taunt the Russian diplomatic staff. And the idea that I could have sunflowers that charge all day and then glow all night so that the sunflower garden could be visible all night was just irresistible. So I ordered eight of them on the spot, being an impulse purchaser in my old age.
- [76:43]
B
And the other, I don't think that's new, Ben. And I've seen your office.
- [76:47]
A
They arrived.
- [76:48]
B
Some of the dustiest items were definitely impulse purchases.
- [76:51]
A
And they arrived the other day just in time for Ukrainian independence Day. And I went down to the Russian embassy and installed the eight kitschiest plastic sunflowers you could possibly imagine. And they are glowing every night. Now the Russians have. Somebody's already destroyed one of them. Them. I think it is the best thing. So I just want to say rah, rah Algorithm. Yeah, feed me more stuff.
- [77:23]
B
Wonderful. Renee, what do you have for us this week?
- [77:26]
D
It's funny, as you were saying that, I was thinking the best thing the algorithm has ever given me on YouTube about maybe two years ago now was it started giving me this Red Bull dance competition. The Red Bull dance, your style.
- [77:40]
B
I saw this on your social media.
- [77:41]
A
It's very cool.
- [77:42]
D
I know, I know. So for those who don't know, Red Bull actually sponsors a whole lot of extreme sports on Instagram. It shows me Red Bull, like cliff diving, which is another thing I'm like on the Red Bull recommender, like feed at this point. I do no extreme sports myself, but I do dance. And it started showing me the Red Bull dancer style stuff and I actually did really, like, engage with it. And now, like two years later, I actually have tickets to go to Worlds myself this year. But the US national for their street dance competition was actually Saturday night. So you can actually go to their channel and the lives up. And if you just want to watch really, really fun, like incredibly talented 19 year olds dance to music that you will totally remember dancing to in like your college dorm room. You know, it really kind of hits all the right notes and actually it will really transform your feed in very fun ways because YouTube will decide that you want to see more of this. And it's just a nice break from like news and political content and stuff like that. So just 19 year olds dancing to fun music.
- [78:40]
B
I love it. I checked it out. I have to say, on your recommendation on social media, I'd say it was like very cool. It beat out the Olympics break dancing competition, which is the last such thing I did tune into, which I also thought was pretty cool. Although, you know, people made a little bit of a mockery of it, but. But yeah, definitely worth checking out. And I will say the awesome extreme sports videos also very cool. Deep in my feed it is almost exclusively what I seem to get, especially on Facebook. It's either that or people who are cave diving into really tight tunnels underwater, which I find terrifying but can't stop watching. That is what the algorithm is serving me, for better or for worse.
- [79:13]
A
Not trying to sell you any Eastern Europeans?
- [79:16]
B
Not at the moment. We'll see. I mentioned last week that most of my social media these days Since I turned 40 is pictures of stone fruit cut in half with a quote that says this is why you're dying of cancer. And that is actually most of my social media. I will say, but that's okay. I don't, I don't read into it too much for my object lesson. It did not come from the algorithm. It came from Mother Earth herself. I took up gardening as a hobby over the pandemic and still keep up it with it with a medium sized vegetable and herb garden that is a little rangy and a little wild this time of year. I'm not gonna lie, I didn't prune it quite as effectively as I should have this summer, but it's great fun. I planted something that has become so amazing and such a wonderful, beautiful addition. I highly recommend it to people and that is the tomatillo plant. I've grown tomatoes every year. It's always a huge pain in my ass. Tomatoes are really obnoxiously delicate and difficult to grow fruits. I know. Kate Clotic, who recently joined us at Lawfair, is a tomato expert. I need to get her advice on this because I wrestle with it every year since my first year. But I planted two tomatillo plants in my garden this year and they're amazing. They're gorgeous. They're beautiful arching plants, like graceful little trees that also a sudden grow into vines. They have elegant yellow, yellow flowers. They grow the cool little huskid fruits and they actually start. They grow the husk first so you have these hollow little pockets of paper that just hang delicately in the end of the limb. And then the fruit grows inside and slowly weighs down further and further. Around the time it begins to like dip below the lowest branch of the tree. That's when you know it's like getting close to time to pick it. It's wonderful. I've got like three pounds of tomatillos off these things already. I got another two pounds on the vine and I highly recommend it. It's like the Best gardening move I made in years. So check it out. Especially if you're salsa fan or green chili fans. Tomatillos. They belong in your garden. Even in the mid Atlantic, you can make it work. Mike, bring us home. What do you have for your object lesson this week?
- [81:00]
C
So, as Ben knows, I am very much an aficionado of horror films and my wife is not. I'm also an incorrigible prankster and the Internet recently directed me to an online store that sells shockingly realistic horror film type props. And I may have bought several hundred dollars worth of these to hide throughout my house to scare my wife. So for example, yesterday she opened up the refrigerator and found this inside.
- [81:33]
A
And let the record reflect that that was a bloody skull. That might just help get better.
- [81:40]
C
And when she steps into the shower tomorrow, she will find this leather face inspired hanging mask that actually has an attachment to make it look like it's on fire from the inside. So, you know, there's a lot of this between now and Halloween. There's a lot I could do.
- [81:57]
B
Hey, you know, we all have our hobbies. If your marriage can survive this one, by all means. I'm all for it. I'm all for it. That brings us to the end of this week. Week's episode Rational Security is of course a production of Lawfare, so be sure to Visit us@lawfairmedia.org for our show page, for links to past episodes, for written work and the written work of other Lawfare contributors, and for information on Lawfare's other phenomenal podcast series. While you're at it, be sure to follow Lawfare on social media. Wherever you socialize your media, be sure to leave a rating or review wherever you might be listening. And be sure to sign up to become a material supporter of Lawfare on Patreon for an ad free version of this podcast, among other special benefits. For more information, visit lawfaremedia.org support our audio engineer producer this week was Kara Shillin of Go Rodeo and her music, as always, was performed by Sophia Yan. We were once again edited by the wonderful Jen Patcha. On behalf of my guests Renee, Ben and Mike, I am Scott R. Andersen and we will talk to you next week. Until then, goodbye.
- [83:01]
D
This is not a drill. You can get the new iPhone 16e with Apple Intelligence for just 49.99when you switch to Boost Mobile.
- [83:08]
C
Wait, that's the actual fire alarm. We need to go visit your nearest.
- [83:12]
B
Boost Mobile store for full offer details. Apple Intelligence requires iOS 18.1 or later. Restrictions apply.