Compiled by Sarah Willrich.
Articles
Isobel Porteous and Matt Kaplan reviewed the history of Selective Availability, the U.S. policy limiting access to early GPS technology, to draw lessons for regulating artificial intelligence (AI). Porteous and Kaplan argued that Selective Availability was an important pacing mechanism, but the policy was eventually made obsolete by technical advances, the push for greater commercial use, and attempts to modernize the military. They warned that any future AI regulation needs to address how quickly safeguards and restrictions face technical decay.
Despite its undoing, Selective Availability was not a failure. It would have been a failure not to address legitimate fears about GPS misuse. The restriction stayed in place for the years it took to create other GPS security mechanisms. Its impermanence reflects that, alongside the restriction, the government remained committed to building better systems to replace it (M-Code, navigation warfare) and to adapting to new technologies that undermined it (differential GPS). The problem it was built to solve never went away, but Selective Availability provided an interim pacing solution, showing that restrictions are useful when a dual-use technology is new.
Rulemaking by Memo: Why CMMC Suspension Deserves Review
Michael McLaughlin and Harvey Rishikof unpacked new Department of Defense memos that suspend phase two of the Cybersecurity Maturity Model Certification Program. The authors explained that pausing the program leaves the Pentagon on legally shaky ground by attempting to alter a binding rule without providing public comment opportunities and justification. McLaughlin and Rishikof argued that the pause is not only legally risky but leaves a gap in the defense industrial base that makes it harder to detect adversary espionage.
The department frames the suspension as relief from bureaucratic burdens on small businesses. That concern is not frivolous. But the manner of the action, the security judgment it reflects, and the factual premises on which it rests all deserve closer scrutiny than the memoranda and a press conference allow. Two recent shifts in administrative law make the manner especially consequential. The Supreme Court has stripped agencies of the interpretive deference that once cushioned actions like this one, and the Court has tightened the rules governing how an agency may change course.
Measured against that landscape, the suspension may be legally fragile in several separate respects. Measured against the cyber threat environment, it trades a real security benefit for a burden reduction smaller than advertised. And measured against the available data, its central factual premise does not hold.
Podcasts
Lawfare Daily: Why Autocrats Hate Cities with Ambassador Nina Hachigian: Tyler McBrien sat down with Nina Hachigian to discuss her recent piece in Foreign Affairs, entitled “The Autocrat’s Worst Enemy: Why Despots Hate Cities and the Mayors Who Run Them.” They considered how cities are both “laboratories of democracy” and backstops against democratic backsliding, what U.S. mayors can learn about resisting autocracy from their counterparts abroad, and more.
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