Corporate Counsel at Google, Kat Mauler, sits down with Niki in the Tech’ed Up studio to talk about what’s moving fast in tech news. They break down big legislative moves in Congress with the expansion of FISA Section 702 adding extra surveillance remit to the US government, the TikTok divestiture bill dominating the headlines - and why it’s not a ban, and critique the moves of the new Boston Dynamics Atlas robot.
“I had really thought that one of the most enduring takeaways from our last administration and the presidency would be a distrust for executive power. To see an expansion of executive power is really interesting in this moment. ” - Kat Mauler
Corporate Counsel at Google, Kat Mauler, sits down with Niki in the Tech’ed Up studio to talk about what’s moving fast in tech news. They break down big legislative moves in Congress with the expansion of FISA Section 702 adding extra surveillance remit to the US government, the TikTok divestiture bill dominating the headlines - and why it’s not a ban, and critique the moves of the new Boston Dynamics Atlas robot.
“I had really thought that one of the most enduring takeaways from our last administration and the presidency would be a distrust for executive power. To see an expansion of executive power is really interesting in this moment. ” - Kat Mauler
Niki: I'm Niki Christoff and welcome to Teched Up. Today's guest co-host is Kat Mauler, a Washington-based attorney who has worked at Uber and Google.
Today we're talking surveillance, TikTok, and robots. Kat, thank you for joining me in the studio again.
Kat: Thank you for having me.
Niki: We have a lot of fun when we do this.
[both chuckle]
Kat: That's right. We do. This is how nerds bond, I think.
Niki: This is how nerds bond. Right. So we'll just jump right into nerd bonding. Um, So over the weekend, sort of in the dark of night, a new surveillance bill was passed by Congress.
It was an extension of surveillance authorities. 702 of the Foreign Intelligence Surveillance Act, FISA. And it was a little bit unexpected, because it actually not just extended the government surveillance authorities but expanded them a little bit.
Thoughts?
Kat: How appropriate to renew this in the dead of night. [sarcastically]
I think secrecy is the one of the primary flashpoints for FISA for 702 generally. I had really thought that one of the most enduring takeaways from our last administration and the presidency would be a distrust for executive power. And so, to see an expansion of executive power is really interesting in this moment.
Niki: So, just to go back for people who don't closely follow the sections of surveillance authority that have been granted since 9/11. [both chuckle] Just to go back a smidge. The idea of this, of this, essentially, the U. S. government is not supposed to be surveilling Americans without a warrant.
Kat: That's right. Section 702 it allows access to information that passes through the United States that's related to national security interests. So, the goal is to access information about foreign persons, not U. S. persons, but if there is information related to US persons that is included in those communications, which naturally there would oftentimes be, that's not excluded from the surveillance authority here.
Niki: Right. So, basically, you might be an American, but if you are talking to or texting with, or using cloud storage, which they just added this round of extension, if you're using that as with a foreign actor, your information will also be, sort of, swept up in that operation, which is supposed to be something that happens with a warrant.
And one of the flashpoints is the idea that the government is not going to need a warrant to look at American information that is collected during these procedures. So that is, I think, the rub.
Kat: That's right. It's the fact that there isn't much process needed to access that information, but also the various agencies that have access.
So, for example, the FBI has access to that US person’s information where their remit really is much more related to domestic issues under an older criminal authority. It's that lack of process to access a person's information that really has been at the crux of this discussion.
There's been a lot of debate over much more comprehensive reforms, um, but instead of really reforming the heart of the rule what has instead happened is that the authority to collect information has been expanded so that where some of the parties who are subject to the requests here like cloud providers are now swept up, which becomes tricky because it's, it's a much broader definition.
Niki: Right. So, it applies to AT&T, Verizon, Google; any cloud storage providers, this covers all of them. And I always go back to sort of, y'know, having worked in this industry for a long time. The year I moved back to Washington, D. C., I got a phone call almost, it was a decade ago, I got a phone call on, I think like my second day back, and it was from the Washington Post.
I was handling press inquiries and they said, “We've got information about mass surveillance requests and how tech companies are complying with them. And this has been leaked by Edward Snowden.” And I said [chuckling], “Who in the hell is Edward Snowden?” Like, I never heard of this guy in my life. No one had!
And that sort of changed how the industry thinks about this because there was, y'know, before that quite close cooperation with the NSA. Where they'd come with a request at the time, the real issue was terrorism. There was close cooperation. At that time. The tech industry got together.
I was involved in the coalition. It was called the ‘Reform Government Surveillance Coalition.’ I think it still exists. And it was most of the big tech companies and we started to push back and said “These are overly broad.”
Now, part of the reason we needed to push back is we were having a major PR problem because of Edward Snowden [chuckle], but it brought attention to this program that most people hadn't heard of before.
Kat: I think that's right, and transparency is one of the main touch points for the reform proposals, and I'll just make sure to add, I'm here on my personal capacity, not speaking for any employer past, present, or future, but when it comes to, the desire for transparency, for there to be, for example, more public process, transcripts, or any kind of access to what's discussed or decided in the, in the FISA courts.
All of that is now very secretive. So having there be a Snowden moment when it shines light in a lot of theissues around these areas. There's always sort of a tradeoff when it comes to privacy and national security, but just at a higher level, to me, one of the big points of this debate is the need for a national privacy bill, which we've discussed before.
The FISA rule, although there's, sort of, a need for reform and a need for more, for significantly more transparency, and, sort of, constitutional protections, it is a really important national security rule.
In, sort of, reading all of the various debates, I saw somewhere that something like 60 percent of the president's daily briefing comes from this program, [Niki: Oh, fascinating!] comes from these information gathered this way.
Now again, whether or not you trust the current executive leadership with a set of secret courts and secret processes, I think is one of the most significant debates to have across the United States. And so, I think that that's a really good framing to be looking at this, to think perhaps curtailing some of that executive authority makes for a more durable program that you may trust longer over time.
Niki: Well, and that adds to an interesting partisan dynamic of the vote that just happened over the weekend, which is it passed the Senate 60 to 34. It passed easily. And in the House, uh, Speaker Johnson would, in what looked like a sort of subtle but, noted nod to Donald Trump, made the extension only two years instead of five, which means if President Trump is re-elected, he will be able to revisit this and he is very against the national security apparatus. He's made that a real talking point. So, this authority would expire if he were to be elected, he could revisit it. And that kind of goes to your point about, y’know, how we trust the executive branch.
Kat: I think that's right. My understanding is that when Trump was President, he was for this rule and for the national security aspects of it. He is now against it, but that may just go to show that even our executives, their, their trust in the branch and in the power that it has waxes and wanes with who holds that power.
Niki: That's right. [00:10:00] And actually we can, in our next topic, TikTok, we can talk about another. Trump flip flop, [chuckling] which is on TikTok being owned by the Chinese government.
Before that, I don't know if you're comfortable talking about your personal stance on the surveillance. I think of myself as a libertarian, but if I'm really honest, I'm a total national security hawk. And when we had these discussions at Google 10 years ago, I kept saying, like, “We're going to have blood on our hands! If we do not cooperate with U. S. authorities there will be incidents and deaths because of us.”
Now, everybody loved having me in those meetings and on those conference calls. That is not a popular opinion within tech right now [chuckling] because I think people in general are more privacy-focused than national security-focused. I think I'm an outlier.
Kat: You may be an outliner. I think we first became friends in the years when McCain was the most extreme Republican.
I think I define myself sort of the same way, a libertarian, but also a national security hawk in a lot of ways. I love topics like this, and I have followed this debate in large part because it is a way to bring to the fore the tension between these two concepts, which are naturally always in tension, and it's hard sometimes to explore them without having there be some boundary to figure out.
FISA 702 has prevented. numerous terrorist attacks. So there's, there's a lot of evidence for there being a real national security benefit to having a rule like this and to having these contours but there's also a lot of [00:12:00] benefit to having a clean and open dialogue between US providers and US government and its allies. And a lot of times when there's sort of a pitting of US providers against foreign customers, It creates different tensions and it closes lines of communications that may create other issues.
So, for example, if emerging markets are lessor any, any foreign customers are less interested in contracting with or working with US companies because of these requirements and sensitivities, then they may seek some of their, electronic services elsewhere, which could create a much lower US leadership position in the technology space. So, those are potentially theoretical long-term pros and cons but it definitely is interesting to watch.
Niki: That's a great point to bring in not just privacy and national security and the tension there, the sort of zero-sum between the two, but also competitiveness.
Because while I care about US national security and would prioritize it above other things, if you are a company in another country or, and you need to participate with that government, why do you need your data being sort of hoovered up by the US government? So, you're right, that could create a little bit of a problem for some of our biggest exporters and companies that are multinational. And I, I think that's a good point to bring up.
Okay. So, moving on to another topic where Congress is moving at speed with a surveillance-ish related issue, which is TikTok. Surprisingly, also recently, the House voted 360 to 58 to pass an aid bill to Israel and Ukraine, which contained a provision that TikTok must be divested from a Chinese owner.
That is likely to pass in the Senate any day now. President Biden has said he will sign this into law, which basically means this TikTok bill that's been banging around for a couple of years is on the brink of being passed.
It's not a ban. It's a divestiture bill, but it's looking like it's going to go through this week.
Kat: Yeah, it's really interesting watching this. I think a lot of our foreign policy, foreign relationships, relationships with foreign companies. We're seeing sort of this record scratch moment post-covid, post-lack of clarity around all the various facts related to covid’s rise and treatment, post- supply chain concerns. There's a lot of protections, I think, coming in place to try to bring things onto US shores as much as possible.
The TikTok review has been with CFIUS for years now, and I think that a lot of this political energy around this review, [interrupts self] CFIUS is a
Niki: I know. [chuckling] The Committee on Foreign Investment in the United States. Is it true? We are nerds. [both laugh] Continue. Yes. CFIUS is a multi-agency black box organization that looks at any foreign investment in US companies.
Kat: Okay, that's right. The idea is that they've been looking at ownership and determining whether there are concerns around where the ownership lies, but that has been a slow process with not much that's, not much that's been done, has come out of it demonstrably. And so, I think that's where a lot of this political energy has come up.
We were, we were kind of joking pre-show about whether or not congressional actions actually reflect the will of the people or if they're sort of a little bit removed from that sometimes [Niki: or a lot of a bit removed] a lot of removed.
[both chuckle]
It is really interesting also to watch there be so much more bipartisan support for this movement. You mentioned that President Biden has already indicated that he'll sign the bill if it comes to his desk, but the Biden campaign has an account on TikTok. And so it's interesting to see there be not much of an effort to separate from any of the concerns that he may or may not have about the app, the relationship, as a campaign matter.
Niki: And interestingly, in this go around with the TikTok divestiture bill, there is a 12 month timeline for ByteDance to sell TikTok, which gets us past the presidential election. So, it sort of takes off the table a little bit what you're pointing out, which is the hypocrisy of saying you'd sign a bill to do this, but “Oh, by the way, you're going to be using Tiktok right up until November.”
Kat: Yeah, I think that's I think that's right. One of the things that I'm so fascinated by right now and that I think is animating so much of what we're seeing is just how many elections are happening this year. We've talked about this before, but this is a really good example of where, clearly, this is a very popular app, but there's also clearly a lot of movement towards populism in a lot of the worlds, and in American politics. And populism is sort of separated from, again our congressional leaders speaking on behalf of the people that they are elected to speak on whose behalf.
So it's just really interesting to watch, to watch how this will play and to see it be removed from this election cycle in a lot of ways.
Niki: Right. A hundred and seventy million Americans use TikTok. They're happy to keep using it. I don't know of a voting bloc that's clamoring for divestiture of TikTok [chuckling].
And in fact, TikTok has been really masterful at continuing to call this a ban bill. “We're going to be banned!!” They're, if you go into TikTok, which I don't, but if you do and you type in anything about this legislation, you, it says “Call your member of Congress to, y'know, tell them that you don't want the ban bill,” but it's not a ban and actually even Bloomberg over the weekend was calling it a ban, but it's not a ban.
TikTok can continue to exist it just cannot be owned by a Chinese company because they have a law where they must share Information at the request of the Chinese Communist Party but they've masterfully branded it.
So, as a PR person, I'm sort of impressed [both chuckle] by that framing.
Kat: Yeah, that's exactly been my takeaway. You always have this where there's sort of talking points that don't necessarily reflect what the ins and outs of any bill that you're looking at, the talking points almost certainly don't match. There really isn't a ban at play here, so it's been kind of wild to watch those PR aspects.
Niki: Right, there's a lot of message discipline on the part of TikTok and there are many lobbyists in this town. And then they have already said, if this bill passes, which I expect it will, I think the Senate is going to pass it this week. It might even have happened by the time this airs. We're taping on Tuesday, by Thursday it could have happened.
They're saying they're immediately going to challenge it in court under First Amendment rights.
I actually don't think that's going to be very successful for them in court because the First Amendment allows for narrow exceptions where you might have the government restricting speech as long as there are other avenues for you to speak.
And there are, y'know, for our sins, Instagram stories and [both laugh] reels and shorts on YouTube, y'know, there are very [Kat: right] and TikTok if they divest. [Kat: Right, exactly] There are going to be avenues for these creators and these users to continue to communicate the way they do in a very similar format.
So, we'll see what happens.
I do think that those legal challenges and they've got a ton of dough to put into it will take a long time and potentially just continue to to put sand in the gears so maybe this doesn't actually get enacted for a long time?
Kat: Yeah, I think that's right. My personal joke on the nerd front this election cycle has been “Make Congress Work Again.” There's been a lot of work that's been traditionally or in recent memory, going to courts that really is much more of a legislative function. So, it's interesting to watch Congress kind of picking up pens and really working on trying to find bipartisan solutions or at least bipartisan different problems.
So, it's interesting to think that this will be sort of debated in, in courts when it's come through Congress.
Niki: Right. And it's a good point that Congress, I mean, they've got their pens out and they are doing things this week has been just, y'know, a bumper crop of things they[chuckling] are doing none of which the US, [chuckling] y'know, population is asking for.
And I think I always say that the difference between people who aren't worried about TikTok and the members of Congress is that they get national security briefings. And maybe that's the same even with FISA that we talked about.
They are seeing things we never see and hearing about threats that we never find out about.
In any event, they, they're moving. They're doing things. At least they're active.
Kat: Yeah. And that's a really good. You always, your, your line is always that everybody who wants to do a podcast should start a podcast.
Niki: I do say that!
Kat: Transparency is great, and the more you can educate yourself, the better off you are. Just like our members of Congress have briefings this is a smaller version of being able to have just more information.
Niki: By the way, I think it's an unpopular opinion to think people should start podcasts, but I really do.
Kat: I think a little bit of, a little bit of test and experimentation is always good.
Niki: It is. Okay. So, we'll shift to a lighter topic.
This is sort of the last story. Boston Dynamics, which was acquired by Google when I was working there, it's a Boston-based robotics company. They have decided to sunset one of their, their robots.
Thoughts on this?
Kat: Those robots have been creeping me out for like 20 years. They're super creepy. It's the weird backwards leg thing. They-
Niki: Totally!
Kat: It's, it's very Exorcisty. Like, if they could just make it less humanoid, maybe? [laughing]
Niki: Right, well, it's sort of odd in the video to this Atlas robot.
There are experts talking about, y'know, one of the cool things is it can turn around. Let me tell you, it does not turn around like a human. It turns around part by part. So, it's, like, torso turns and its head spins around.
Kat: Yeah, the head spins around. [laughing]
Niki: Nobody wants that. It's totally creepy. We're all against it, but so hopefully they're just going to use it in automotive plants, which seems like a great place to put a backward-legged humanoid.
Kat: Sometimes transparency is not the way.
[both laughing]
Niki: Right, exactly.
We'll just go back on what we said. Like, I don't really want to have nightmares about this thing. Put it in a, put it in some sort of factory doing like great work with its metal fingers, but I don't want to see them. [chuckling]
Kat: Where its head can spin as much as it needs to without my having to see.
[both laugh]
Niki: We'll put a link to that video in the show notes.‘Cause it really is, it really is something to watch. So anyway, we'll end on that.
I think we're very much agreed that, y'know, even their robot dogs, which did some great things, like they could find landmines, but I was just like, “They don't have heads.[both laugh] I don't like it.”
Kat: [laughing] Make them look like a Roomba or something!
Niki: Right, exactly! Make them cute! WALL-E guys! {Kat: Right]
Just, again, messaging. That's right. Like, make them adorable, so people don't yeah, have the same-
Kat: So they don't ask any questions. [chuckling] So people stop asking questions!
Niki: If only FISA were more adorable.
Niki: If only, exactly. If only Section 702 was more adorable, people would be like, “Sure, pass it.”
These are our, these are our morning thoughts.
Kat, thank you for coming in. I appreciate your thoughts on the actual statutes and the trends that are happening across the country. And it's been a joy to have you.
Kat: Always a pleasure.