Welcome back for another week of What's Next, where we report on the intersection of law and technology. This week, we question whether encryption is tangled up in the antitrust suspicion surrounding Silicon Valley. Plus, Facebook's confidential regulatory disclosures might become central to discovery in a proposed class action. And an appellate court rules that the Fourth Amendment does not always apply to WiFi thieves. Let's chat: Email me at [email protected] and follow me on Twitter at @a_lancaster.

Are Anti-Encryption Advocates Capitalizing on Big Tech Backlash?

For the past two weeks, we've been daydreaming about what a world with backdoors to encryption would look like and how it could become a reality.

In October, U.S. Attorney General William Barr and legislators implored Facebook to roll back its encryption plans, renewing the discussion about the role encryption plays in privacy and criminal activity. This isn't the first time law enforcement and other government agencies have called for dismantling encryption or creating backdoor access. But what's different now?

Some cybersecurity experts said the heightened anti-encryption rhetoric could be connected to the shifting sentiment against Big Tech.

Stewart Baker of Steptoe & Johnson said the antitrust movement around tech and the encryption debate are "for sure" linked. When tech was riding high and transforming lives, he said, the public ignored arguments to slow down or regulate the industry, and tended to trust the techies when they said that certain policy moves would "kill the golden goose."

Now, that trust has dissolved, and there's no longer automatic deference to the idea that regulating tech would disrupt the innovation cycle, he said. But just because people don't have faith in big tech doesn't necessarily mean they're now putting their trust in the government.

"It used to be in public estimation the FBI v. Apple was gray hat versus white hat," he said. "Now it's gray hat versus gray hat. That means Silicon Valley's arguments are going to need to be sharper and more persuasive than they were five years ago."

Riana Pfefferkorn, associate director of surveillance and cybersecurity for Stanford Law School, said antitrust suspicion and the calls for backdoors to encryption are "absolutely" tied together. "I've been saying for two years that the techlash is playing into the strategy on behalf of law enforcement to try to turn public opinion against tech companies, even with regards to something like security, where the whole point is to enhance user privacy and security," Pfefferkorn said.

Pfefferkorn said Apple and Facebook ticked off law enforcement by removing the capability for even themselves to access messages and other data on devices. She said she believes that law enforcement is leveraging public and congressional suspicion of Big Tech to "try and promote the perverse anti-user goal of trying to get Congress to legislate less privacy, less security and make these companies more complicit and more willing to participate in monitoring and spying on users for purposes other than their own business services."

At the same time, there's tension between the push for antitrust action and encryption, she said, since one advocates for more transparency and the other for less.

Amie Stepanovich, executive director of the Silicon Flatirons Center for Law, Technology, and Entrepreneurship at the University of Colorado Law School, said the current anti-tech climate could "potentially" impact the outcome of encryption policies in the U.S. "I think the Department of Justice surely thinks that could be the case, given that they are newly pushing again on some form of legislation to require companies to lessen the security they are offering to people," she said.

Judge Vince Chhabria, U.S. District Court for the Northern District of California

Airing Facebook's Regulatory Laundry

Facebook documents shared in government agency investigations could be featured in a proposed class action stemming from Cambridge Analytica litigation.

U.S. District Judge Vince Chhabria of the Northern District of California suggested the company's trove of regulatory information could help expedite the case in which 32 plaintiffs claim Facebook apps gathered user data through their friends' profiles without authorization.

Chhabria said tapping into the documents provided in other regulatory inquiries, such as the Federal Trade Commission probe earlier this year, would allow plaintiffs' counsel to say, "Here are the 10 categories of documents shared with the FTC, we would like the first five."

"Wouldn't that be a lot more efficient?" he asked in a case management conference Monday.

Facebook's Gibson, Dunn & Crutcher attorneys did not agree with the judge's assessment.

"They're confidential," said Gibson Dunn's Orin Snyder. "I wouldn't be surprised if the agencies would be opposed in our producing them."

Snyder said that 90% of the information handed to regulators would not be relevant to the case. His team also would have to review the documents for this particular context, because they likely define responsiveness more generously when dealing with a regulator.

"We want to open the kimono and give everything, because they're the government," he said. "We're going to be in a morass if you piggyback on disparate regulatory productions."

Derek Loeser, a plaintiffs' attorney from Keller Rohrback in Oakland, California, said that sharing agency production requests is "not the least bit uncommon," and expressed particular interest in an internal Facebook investigation mentioned in documents from Massachusetts Attorney General Maura Healey's inquiry. The investigation, which the company said in a blog post involved hundreds of attorneys, external investigators, data scientists, engineers and policy specialists, led to Facebook disabling tens of thousands of apps, according to the unsealed documents.

Just last week, Chhabria, denied Facebook's request to file an interlocutory appeal before the U.S. Court of Appeals for the Ninth Circuit, Critical Mass' Amanda Bronstad reported.

On Thursday, Facebook also saw fresh claims over its financial services ads. Outten & Golden, Handley Farah & Anderson, Aqua Terra Aeris Law Group and the Law Office of William Most, who settled a lawsuit that ushered in a policy shift for how housing, employment and credit advertisers are allowed to target certain demographics on Facebook, sued the company once more over claims that the company hasn't cleaned up its act when it comes to financial advertisers discriminating against women and older users.

Judge Johnnie Rawlinson, United States Court of Appeal for the Ninth Circuit

The Fourth Amendment Won't Save WiFi Moochers

It just got harder to invoke the Fourth Amendment when you're stealing your neighbor's wireless internet connection.

In the latest test for how the Fourth Amendment plays out in the digital age, a panel for the U.S. Court of Appeals for the Ninth Circuit affirmed a conviction for the distribution and possession of child pornography in a case where the FBI leveraged a tool called Moocherhunter, a program aimed at identifying network trespassers without directly accessing any devices.

After the FBI executed a warrant for an apartment that housed a wireless router used to log on to a peer-to-peer file-sharing network for child pornography, the agents found some unknown devices had connected to the router. Using Moocherhunter, investigators traced the device addresses to a neighboring apartment, where they found implicating evidence.

The defendant in the case, Alexander Nathan Norris, accused the government of infringing his Fourth Amendment rights by using the software.

Judge Johnnie Rawlinson, who wrote the opinion on behalf of Judges Mary Schroeder and Diarmuid O'Scannlain, disagreed, comparing the FBI's actions in the case to observing the source of loud music from an apartment complex.

"Although the music is produced within the apartment, the sound carries outside the apartment," Rawlinson wrote. "Just as no physical intrusion 'on constitutionally protected areas' would be required to determine the source of the loud music, no physical intrusion into Norris's residence was required to determine the strength of the wireless signal emanating from the devices in his apartment."

The court also cited United States v. Stanley, a nearly identical Third Circuit case, to affirm that there's no expectation of privacy when "an individual gains access to the internet through the unauthorized use of a third-party's password-protected router located outside his residence."

On the Radar

Virtual Voir Dire Florida attorney Alex Alvarez has launched jury selection software that leverages data to predict jury behavior and outcomes. Momus Analytics generates personality profiles of prospective jurors based on biographical information, public social media posts and filled-out questionnaires. Alvarez, who specializes in tobacco litigation, claims that the methodology Momus is built on helped him rake in $900 million verdicts for plaintiffs. Read more from Zach Schlein here.

Gig Companies Ante Up This summer, Uber and Lyft spent $675,000 fighting to maintain their business model amid landmark legislation in California that would reclassify contractor workers as employees, according to new disclosures. The law, AB 5, still passed despite Lyft forking over $446,450 in the third quarter, when lawmakers submitted final votes and the governor signed the bill. The cash flow blows past the company's previous record quarterly total by almost 60%. Read more from Cheryl Miller here.

Ethically Sourced AI Only 21% of surveyed companies who use artificial intelligence have an ethical framework of the tool for risk-management and compliance efforts, according to a new report from Deloitte. When it comes to AI, lawyers say companies actually have more ethical concerns than legal ones. "The potential for AI technology is quite significant and the ability of the technology to make decisions, make recommendations, predictions or take actions is really revolutionizing a lot of sectors, but at the same time it presents questions about ethics," said Davis Wright Tremaine partner K.C. Halm. Read more from Victoria Hudgins here.

Cybercriminals Squeeze U.K. Firms A British regulator has reported that bad actors stole more than £4 million from 23 law firms over the past three years. At a data security conference, the Solicitors Regulation Authority (SRA) shared that United Kingdom law firms lost an average of £60,000 of client money during an attack. The SRA uncovered 31 firms who had been the target of attacks since 2016, two of which reported more than 100 cyber attacks each. Read more from Hannah Roberts here.

Thanks for reading. We will be back next week with more What's Next.