The Lawfare Podcast

Section 230 of the Communications Decency Act of 1996 immunizes platforms for the behavior of their users. It's been called by some the Magna Carta of the internet—but how foundational is it? Mary Anne Franks, a professor of law and Dean's Distinguished Scholar at the University of Miami, thinks that Section 230 is indeed a cornerstone of the modern internet, but not in a good way. As part of Lawfare's ongoing Digital Social Contract research paper series, she recently published a paper entitled, "Section 230 and the Anti-Social Contract," in which she argues that far from expanding freedom, Section 230 has simply continued a long tradition of marginalizing the most vulnerable among us. Alan Rozenshtein spoke with her about her paper, about how Section 230 fits into the broader history of American political thought and about her ideas for a better internet.

Direct download: Mary_Anne_Franks_on_Section_230.mp3
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This week on Lawfare's Arbiters of Truth miniseries on disinformation and misinformation, Evelyn Douek and Quinta Jurecic spoke with Rasmus Kleis Nielsen, the director of the Reuters Institute and professor of political communication at the University of Oxford, about the fight between Australia and Facebook. After Australia proposed a law that would force Facebook to pay for content linked on its platform from Australian news sites, Facebook responded by blocking any news posts in the country. The company and the Australian government have since resolved the spat—for now—but the dust-up raises bigger questions about the relationship between traditional media and social media platforms and the future of the media industry. They talked not only about Australia, but also about the role of social media in contributing to political polarization, the outlook for various business models funding journalism and what political solutions—other than Australia’s—might look like.

Attorney General nominee Merrick Garland faced the Senate Judiciary Committee on Monday for a multi-hour session of questions and answers from senators. There were opening statements, there was a lot of speechifying, and there was posturing on the part of senators of both parties. We stripped it all out to bring you just the questions and the answers with no repetition. The committee covered a lot of ground: How will Merrick Garland handle the John Durham investigation? How will he handle white supremacist violence? How will he handle antifa? And will he answer—finally—questions from senators on the committee?

Direct download: Merrick_Garland_v_the_Judiciary_Committee_with_No_Bull.mp3
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For more than a week now, Texas has been struggling with a massive power outage caused by record low temperatures. Millions have been without power, heat and running water, and at least dozens have been confirmed to have died as a result. All states are confronting extreme weather, but Texas is unique in that its electricity is almost completely independent from the rest of the United States' grid. This has at times lowered costs and increased innovation in the Texas energy markets, but as the current crisis shows, Texas's energy exceptionalism comes at a cost. Alexandra Klass is the Distinguished McKnight University Professor at the University of Minnesota Law School and a nationally recognized expert on energy law and policy who recently wrote about the Texas energy crisis for Lawfare. Alan Rozenshtein spoke with her about the current situation and the future of energy policy, both for Texas and for the United States.

Direct download: Alex_Klass_on_the_Texas_Energy_Crisis.mp3
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David Hoffman is associate general counsel and global privacy officer for the Intel Corporation, as well as the Steed Family Professor of Practice in Cybersecurity Policy for Duke's Sanford School of Public Policy. He invited Benjamin Wittes to give a talk to a group of students about trust and technology development in which they discussed what the components of trust really are, how many of them are technical and how many of them involve other things like corporate governance, including brand and the regulatory environment in which products are produced.

Direct download: Trust_Hardware_and_Software.mp3
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On February 1, Myanmar's military overthrew the country's democratically elected government in a coup and declared a state of emergency for a year. It returns Myanmar to full military rule after nearly a decade of quasi-democracy that began in 2011. The coup came just hours before the start of a new session of Parliament, which was expected to endorse the results of a November election where de facto leader Aung San Suu Kyi's party won in a landslide and the military-backed party performed poorly. The military has alleged voter fraud, but Myanmar's election commission has said that there is no evidence to support its claims. Since then, the country has seen daily peaceful protests and large-scale strikes against military rule, at times clashing with security forces who have been seen using tear gas and rubber bullets to disperse crowds. To break it all down, Rohini Kurup spoke with Aye Min Thant, a Pulitzer Prize-winning journalist based in Myanmar. They discussed Myanmar's history of military rule, what it is like living through a coup and what to expect in the coming weeks.

Direct download: The_Coup_in_Myanmar.mp3
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Right now in India, there’s a legal battle that could portend the future of the internet. In this episode of Arbiters of Truth, Lawfare’s miniseries on disinformation and misinformation, Evelyn Douek and Quinta Jurecic talked to Chinmayi Arun, a resident fellow at the Information Society Project at Yale Law School and an affiliate of the Berkman Klein Center for Internet & Society at Harvard University. She discussed one of the biggest stories about freedom of expression online today—the battle between Twitter and the Indian government, which has demanded that Twitter geoblock a large number of accounts, including the account of a prominent investigative magazine, in response to protests by tens of thousands of farmers across India. Chinmayi walked us through the political context of the farmers’ protests, how the clash between Twitter and the Indian government is part of an increasingly constrained environment for freedom of expression in India, and where this battle might end up.

Direct download: Chinmayi_Arun_on_India_and_the_Future_of_the_Internet.mp3
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The second impeachment trial of Donald J. Trump is now over. It ended with a roar and then a whimper, and then a little bit of a roar again, as seven Republicans joined all of the Democrats to convict the former president. It wasn't enough, as the Senate needed 67 votes to convict and it only had 57, but it made a statement of sorts—or did it? To discuss the impeachment trial, its weird ending and where it fits in with the effort to hold Donald Trump accountable, Benjamin Wittes sat down with Lawfare managing editor Quinta Jurecic, Lawfare chief operating officer David Priess, senior editor Scott R. Anderson and congressional guru Molly Reynolds. They talked about how the impeachment trial ended, what it meant that the Senate voted to call witnesses and then didn't bother, how to interpret the Senate's performance overall in the second impeachment trial and what the options are now that Donald Trump is a private citizen facing potential civil litigation, as well as criminal investigations and a possible 9/11-style commission.

Direct download: How_the_Impeachment_Trial_Ends.mp3
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The Biden administration has promised significant changes to the U.S. relationship with Iran that could have a marked impact on the Middle East. What is the likelihood that this new administration will be successful? And how will other regional developments—from the Abraham Accords between Israel and a few Arab states, to the healing of the rift within the Gulf Cooperation Council, to the ongoing morass in Syria—affect the dynamics here?

To address these questions, David Priess hosted a panel discussion on February 11 for the Michael V. Hayden Center for Intelligence, Policy and International Security at George Mason University's Schar School of Policy and Government. He sat down with Norman Roule, a 34-year veteran of the CIA, who served as the national intelligence manager for Iran for more than eight years; Kirsten Fontenrose, formerly the senior director for the Persian Gulf on the National Security Council staff and currently the director of the Scowcroft Middle East Security Initiative at the Atlantic Council; and Ambassador Dennis Ross, who has served in U.S. government positions pertaining to the Middle East for some 40 years, and who is now a distinguished fellow at the Washington Institute for Near East Policy.

Direct download: Iran_the_US_and_the_Middle_East_at_a_Turning_Point.mp3
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Lost in the shuffle of an impeachment trial here in the United States was big news from Canada last week. Canada’s Minister of Public Safety added the Proud Boys to Canada’s terror entity list. The listing might be in Canada, but the group had a role in the January 6 storming of the U.S. Capitol. The listing has all sorts of interesting legal and national security implications, so Jacob Schulz talked it through with two Canadian national security experts. Jessica Davis is a former senior strategic intelligence analyst with the Canadian Security Intelligence Service who is now the president of Insight Threat Intelligence and a PhD student at the Norman Paterson School of International Affairs at Carleton University. And Leah West is an assistant professor of International Affairs at Carleton University and serves as counsel with Friedman Mansour LLP. They talked about right-wing extremism in Canada, what the consequences of the listing might be and what it reveals about the relationship between Canada and the United States.

Direct download: Canada_Takes_on_the_Proud_Boys.mp3
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On this episode of Arbiters of Truth, Lawfare’s miniseries on disinformation and misinformation, Evelyn Douek and Quinta Jurecic spoke with Ben Smith, media columnist for the New York Times and former editor-in-chief of BuzzFeed News. Ben spends a lot of time thinking and writing about the gatekeepers who hold the power to shape our public sphere. At BuzzFeed, he capitalized on the way the rise of the internet allowed upstarts to work around the Old Gatekeepers, the legacy media organizations; now, at the Times, he’s one of them. But there are also the other New Gatekeepers: the Platforms, flailing around as much as the rest of us in trying to make sense of the role they’ve found themselves in. So what does Ben think about the current state of the media ecosystem and where it's headed? And why, in his view, was February 26, 2015—almost exactly 6 years ago—the last good day on the internet?

Direct download: Ben_Smith_on_Gatekeepers_in_the_Internet_Age.mp3
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While we have been dealing with an insurrection in Washington, protestors in Hong Kong are being tried under the city's new Beijing-imposed national security law. For an update on what's going on in Hong Kong and in its relationship with China, Benjamin Wittes sat down with Sophia Yan, Beijing correspondent for The Telegraph in London, and Alvin Cheung, a postdoctoral fellow at McGill University and a non-resident affiliate scholar with NYU's U.S.-Asia Law Institute. They talked about how the national security law is being applied in Hong Kong, whether the protests are likely to reignite as the coronavirus epidemic fades and what activists are doing now that they do not know what Beijing will tolerate.

Direct download: An_Update_from_Hong_Kong.mp3
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George Shultz passed away on February 6, just two months after passing his 100th birthday. He was a momentous and fascinating national security figure who has quite a legacy within national defense, foreign policy and even management circles in the federal government. To talk about his legacy and what made him such a special senior government leader, David Priess sat down with Ambassador Nicholas Burns and Kori Schake. Nick Burns is a man of many titles, including professor at the Kennedy School at Harvard University, building on almost three decades of U.S. government service, including a role as the Under Secretary of State for Political Affairs from 2005 to 2008. Kori Schake is the director of foreign and defense policy studies at the American Enterprise Institute, coming after service in the National Security Council, the Department of Defense and the Department of State. They talked about about George Shultz, the positions he had, the influence he had on those around him and his influence on future administrations, both Republican and Democratic.

Direct download: The_Legacy_of_George_Shultz.mp3
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The Senate impeachment trial of Donald Trump—the sequel—gets underway this week when the House impeachment managers and Trump's new defense team spar on the Senate floor under the gavel of Senator Patrick Leahy. What should we expect from this second round of impeachment trial? For a preview, Benjamin Wittes sat down with Molly Reynolds, Lawfare's congressional guru and a senior fellow at the Brookings Institution; Lawfare's managing editor Quinta Jurecic; and Lawfare's chief operating officer David Priess. They talked about what rules are going to apply this time and whether they will be different from the last time around, whether there will be witnesses, what will be different with Senator Leahy presiding, how the president is likely to present his defense and how he might scuttle his lawyers' efforts.

Direct download: An_Impeachment_Trial_Preview.mp3
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Some countries don't just abuse their citizens within their own borders; increasingly, they target individuals after they have gone abroad. A range of nefarious acts play a role here, and together they make up a phenomenon called transnational repression.

Nate Schenkkan, the director of research strategy at Freedom House, and Isabel Linzer, Freedom House's research analyst for technology and democracy, are the two authors of "Out of Sight, Not Out of Reach: Understanding Transnational Repression," a new report detailing the practice and Freedom House's research on the topic. David Priess sat down with them to discuss the variety of forms transnational repression can take, whom is targeted and why, examples from the governments of Russia, Saudi Arabia, China, Rwanda and even Equatorial Guinea, and recommendations to buck this growing trend

Direct download: Transnational_Repression.mp3
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On this episode of Arbiters of Truth, Lawfare’s miniseries on disinformation and misinformation, Quinta Jurecic sat down with Lawfare’s deputy managing editor Jacob Schulz, and Jordan Schneider, host of the ChinaTalk podcast, to talk about Substack. The newsletter service is the new cool thing in the journalism world—and, like any newly popular online service, it is already running into questions around content moderation.

Jacob wrote about Substack’s content moderation policy earlier this month, and Jordan uses Substack to send out his ChinaTalk newsletter, so he filled us in on the platform’s nuts and bolts. Why is Substack so popular right now, anyway? Does it help writers step outside the unhealthy dynamics that help spread disinformation and discontent on social media, or does it just play into those dynamics further? And what might the platform’s content moderation policies leave to be desired?

Direct download: Lawfare_Enters_the_Substack_Discourse.mp3
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There is an impeachment trial next week, and the two sides—the impeachment managers for the House of Representatives and the lawyers for the former president of the United States—filed their briefs before the Senate. The briefs could not be more different. One is long, legally dense and factually rich; the other is short—a mere 14 pages—and contains some interesting oddities and errors. To chew over the briefs, Benjamin Wittes sat down with Lawfare's managing editor Quinta Jurecic and chief operating officer David Priess. They talked about what the two sides are arguing, what it says about the cases they mean to present to the Senate and whether there are going to be witnesses next week when the two sides have to present their cases before the senators themselves.

Direct download: Impeachment_Briefing.mp3
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It was the second weekend of major protests in Russia, as Russians across the country took to the streets to protest the detention of Alexei Navalny. In a major show of force, the police rounded up a very large number of people and there were a number of beatings. To bring us up to speed on the situation in Russia, Benjamin Wittes sat down with Alina Polyakova, president of the Center for European Policy Analysis. They talked about whether the protests are dwindling or gathering strength, and whether that's really about the Russian security services or the 30-degree-below-0 weather. They talked about Putin's game plan, Navalny's game plan and where this is all heading over the next few months and years.

Direct download: Alina_Polyakova_on_the_Protests_in_Russia.mp3
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On January 27, the Department of Homeland Security issued an unusual National Terrorism Advisory System bulletin—unusual because it addressed solely the heightened threat environment of violence from domestic violent extremists, with no mention of foreign terrorist organizations or even the word terrorism. It's a striking document both for what it describes and for what it leaves unsaid.

To discuss the bulletin, its context and what comes next, David Priess sat down with Carrie Cordero, former counsel to the National Security Division at the Department of Justice and senior associate general counsel at the Office of the Director of National Intelligence; Andrew McCabe, the former deputy director of the FBI; Elizabeth Neumann, former deputy chief of staff to the Secretary of Homeland Security and assistant secretary for threat prevention and security policy at DHS; and Nick Rasmussen, former director of the National Counterterrorism Center.

Direct download: DHS_Warning_Domestic_Violent_Extremists.mp3
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