Are there complications with digitizing healthcare?

Rory Cellan Jones: These devices have the power, the potential, to transform health care, and I was frustrated with how slowly that has been happening.

Dave Bittner: Hello everyone, and welcome to Caveat,the CyberWire's privacy surveillance law and policy podcast. I'm Dave Bittner, and joining me is my co-host Ben Yelin from the University of Maryland Center for Health and Homeland Security. Hello Ben.

Ben Yelin: Hello Dave.

Dave Bittner: Today Ben discusses a recent op ed about the danger of privacy at all costs, and response from critics. I ponder the supreme court asking the Biden administration for input on social media laws in Florida and Texas. And later in the show, Carole Theriault joins us. She's discussing digitization of health care with former BBC guru, Rory Cellan Jones.

Dave Bittner: While this show covers legal topics and Ben is a lawyer, the views expressed do not constitute legal advice. For official legal advice on any of the topics we cover, please contact your attorney.

Dave Bittner: And now a few thoughts from our sponsors at KnowBe4. What do you do with risk? We hear that you can basically do three things. You can accept it, you can transfer it, or you can reduce it. And of course, you might wind up doing some mix of the three, but consider this. Risk comes in many forms and it comes from many places, including places you don't necessarily control. Many an organization has been clobbered by something they wish they'd seen coming, so what can you do to see it coming? Later in the show, we'll hear some of KnowBe4's ideas on seeing into third party risk.

Dave Bittner: Alright Ben, we've got some good stories to share this week. Why don't you start things off for us here?

Ben Yelin: So mine's really a big picture debate. It was sparked by an op ed in the New York Times, by Reid Blackman, who's an advisor to government and corporations on digital ethics. The op ed was released during the Christmas holiday, so I think it kind of went under the radar and not many people paid attention to it.

Dave Bittner: Mm.

Ben Yelin: But I think it's an argument that's really worth us considering. The hook for this op ed is that Jack Dorsey, the co-founder of Twitter, who is no longer in charge of Twitter as we know, said--

Dave Bittner: [LAUGHS] I hadn't heard that. Someone else has taken over Twitter, really? [LAUGHS]

Ben Yelin: Yes. If you've been in a coma for a year you'd be very surprised about what's gone on at Twitter. [LAUGHS]

Dave Bittner: Yeah. Oh interesting.

Ben Yelin: Sometimes I wish I had been because it's such a mess these days, right? Besides that point, Jack Dorsey noted that no government nor any other company should exert control over what he calls "the tools that are owned by the people." In other words, privacy is the foremost value in social media technology and it's critical for the future of social media, in his view, for privacy to basically be protected at all costs. And the op ed notes the benefits of this approach to privacy. He talks about the app, Signal, which I know we've discussed many times on this podcast.

Dave Bittner: Yeah.

Ben Yelin: How it's used, the end to end encryption technology is used by journalists to communicate with confidential sources. Signal has an ethos which is that privacy has to be respected at all costs. They don't keep any metadata. It is truly a way to anonymize its users.

Dave Bittner: Yeah.

Ben Yelin: And that's its inherent value. The point of this op ed is that maybe we should reconsider having privacy as the lead value, or the lead ethos, in some of these applications and that there is a danger in valuing privacy over all else. He presents arguments that this obsessive focus on privacy leads to some bad public policy outcomes. So, he talks about how, in the example of Signal, it was used by several members of the so-called Oath Keepers group to plan the riot at the Capitol on January 6th. There are obviously some very bad users of some of these applications that value privacy.

Dave Bittner: Right.

Ben Yelin: Terrorists, people who share child sexual material, you know, some of the worst actors out there and if we value privacy over everything else, that's really going to hamper law enforcement's effort to hold some of these bad actors accountable.

Dave Bittner: Mm.

Ben Yelin: I think he confronts one of the main arguments of the Signals of the world, and other similar applications that, you know, if anybody has access to this data that we're trying to keep secret, then unauthorized people are going to have access to that data. What he says is that type of argument reflects a quote "lack of faith in good governance which is essential to any well functioning organization or community." Basically, that we have organizational structures in place in both the private sector and the government sector, to protect against some of these communications getting into the wrong hands.

Dave Bittner: [LAUGHS] Can I interrupt and just say meanwhile back in the real world?

Ben Yelin: Yes. So, that's where I'm getting here.

Dave Bittner: [LAUGHS] OK, I didn't mean to jump the gun on you Ben. I apologize.

Ben Yelin: Yes, I mean that's kind of a euphoric few of what actually happens.

Dave Bittner: OK.

Ben Yelin: We know that in the real world [LAUGHS] bad actors get access to private communications all the time, and we have a lot of historical examples of the government itself misusing some of its own authorities, both in subpoenaing records, or obtaining records under our national security statutes, for example and in simply purchasing data from these applications and using them for law enforcement purposes.

Dave Bittner: Mm-hm.

Ben Yelin: So, the upshot of this op ed is that this author is not convinced that we're actually getting more freedom for the people by the people by way of these privacy obsessed technology overlords.

Dave Bittner: [LAUGHS]

Ben Yelin: And this led to, I think, a pretty compelling critique from Clark Neily and Norbert Michel at the Cato Institute, which is a libertarian think tank in Washington DC. And they basically argue that this perspective that privacy is good and sometimes it's worth protecting the abilities of two parties to communicate, but really, you know, that value is not necessarily superior to the value of protecting public safety or limiting us against bad actors. It's not grounded in reality and it's not grounded historically. For one, trusting the government, and trusting governing bodies, goes against the spirit of our founding fathers who defied British [LAUGHS] tyranny and in doing so, used forms of communications that were designed to evade surveillance. So, a lot of the revolutionary war and the US rebellion depended on secure communications.

Dave Bittner: [LAUGHS] One of by land, two of by sea. [LAUGHS]

Ben Yelin: Exactly, that's what they say in the article.

Dave Bittner: Is that right?

Ben Yelin: I mean, that's literally what that means. And they embraced a different view of government and rejected what they call "the reductive utilitarianism" of this privacy only proposition or privacy as the most important value. So, it goes against the spirit of our founding, and it goes against the spirit of our first amendment. First amendment states unequivocally that Congress shall make no law abridging the freedom of speech and being able to speak freely in their view, necessarily means that you're able to speak securely and outside the view of government actors.

Dave Bittner: Mm-hm.

Ben Yelin: That should be enshrined in our legal system that we're protecting, no matter what the form of communication is, we have to protect it from government access. And then the last thing they mention, which I think is a really important argument as we have all of these historical examples of government seeking to perpetuate what they call "monstrous institutions", by ferreting out dissenters, infiltrating associations, and preventing the spread of destabilizing ideas. This has happened in the Jim Crow era, this happened during the Civil Rights Movement. Obviously Martin Luther King Junior was surveiled by the FBI, and the FBI has infiltrated a lot of what we would now consider beneficial protest movements. And even though some of the government's actions now in trying to obtain communications, for example for the purpose of preventing financial fraud, or even something like terrorism, while those may seem beneficial, we know that if we put this type of power in the government's hands, it could lead to some of these really dispiriting historical examples.

Ben Yelin: So, Cato basically says, look, we have this history, the history of government surveillance is ugly, it is replete with the type of false assurances that you see in this op ed and we can't make this type of mistake again. And that's kind of their accusation against this op ed writer. So, I think, you know, our listeners can come to their own conclusions as to this debate, whether privacy at all costs should be the foremost value in the technological space. But I think it opens up a really interesting big picture debate that I think is really interesting for us to discuss.

Dave Bittner: So, the original op ed in the New York Times by Reid Blackman, do you suppose he was framing this as an all or nothing just for rhetorical purposes? Because it seems like a bit of a straw man argument to say that it's all or nothing. That there is no nuance, that it's on or off, that there isn't a spectrum or a dial here.

Ben Yelin: So, I actually think that's not giving him quite enough credit. I mean, he is talking about the beneficial use of privacy as a value. The beneficial proposition of privacy when privacy is tantamount, like communications between journalists and confidential sources.

Dave Bittner: Yeah.

Ben Yelin: I think what he's trying to say is, a lot of the tech bros out there, and he didn't use that term, I'm using it pejoratively.

Dave Bittner: [LAUGHS] OK.

Ben Yelin: But a lot of those type of people don't even want to have the conversation about whether law enforcement should tap our phones, or surveil our communications.

Dave Bittner: Right.

Ben Yelin: In some of these bad circumstances, like child sexual exploitative material, terrorisms, etcetera.

Dave Bittner: Is that kind of throwing away, or disregarding the long history of law enforcement's ability to do that if they get a warrant?

Ben Yelin: Yes. I think what he's saying so that it's at least worthy of conversation. And what Signal has done, in his view, is cut off that conversation. It's not giving the government the option even to obtain a warrant because there's nothing to obtain. They don't retain any traces of the communications between what could be a couple of very bad actors.

Dave Bittner: Mm-hm.

Ben Yelin: So, you know, I think from Blackman's perspective, it's just sort of a hey, let's step back and to the Jack Dorseys of the world, yes I recognize the importance of privacy, but it shouldn't govern the entire technological industry because there are other values at play that are at least worthy of discussion. You know, and in a sense that is itself kind of a straw man because I think everybody [LAUGHS] would agree that it's worthy of discussion.

Dave Bittner: Right.

Ben Yelin: And I think something like Signal is a, and this feels like a bad dad pun, but this is a signal to the rest of the industry that there's a market for companies that emphasize privacy over everything else and they've carved that niche in the marketplace because there's a demand for it.

Dave Bittner: Mm-hm.

Ben Yelin: And I think what Blackman's maybe upset about is that there's a demand for these type of end to end encrypted applications that are very difficult for the government to peruse, and I think most people would agree that the market fulfilling that niche is the market playing its proper role. If such an application can be successful financially, it means that there are a lot of people who really do value privacy at all costs, maybe even at the expense of some of these other values and the market is simply reflecting that. So, I think that itself is kind of a straw argument on his part.

Dave Bittner: Yeah. I mean beyond the market reality, isn't it also just sort of a technological reality that this level of encryption is table stakes these days? It's not a huge lift for an organization to create something that uses end to end encryption. There's nothing exotic about it anymore.

Ben Yelin: Right, and we know that because it's not just Signal that's doing this. I mean, we have WhatsApp, for example.

Dave Bittner: Yes, Meta's working on it for their private messaging. Yeah.

Ben Yelin: Right. And I think a lot of the founders of these applications and the companies that have been formed to carry out the functions of these applications, are built on this fundamental value that we need to combat what they call state corporate surveillance of our online activities.

Dave Bittner: Mm-hm.

Ben Yelin: And that is the one uncompromisable value in their view; individual privacy. I think it is sort of naïve to think that with the demand out there, and with how easy it is technologically to build this type of application, this type of end to end encryption, it's naïve to think that we'll voluntarily give that up just because in a limited number of circumstances, having entities in the private sector or the government have access to these communications might lend itself to optimal outcomes for us. Bad people getting arrested. I mean, I just think that's a little bit naïve considering that there are a lot of people who value privacy over everything else. The technology has the capability to really conceal these communications, and any communication's method is going to be used by bad people.

Dave Bittner: Mm-hm.

Ben Yelin: No matter what the communication's method is, that's been true throughout history. But there is something very fundamental as Cato says, about both our first amendment constitutional rights, which require us to have these secure forms of communications and just in looking at some of these really bad historical examples.

Dave Bittner: I wonder too, just in the temperature of folks these days, in our response to this, how much we're just fatigued from day after day, learning about how so many elements of our privacy are violated for the sake of commerce. That our locations, our interests, all these things are being bought and sold at the speed of light, in order to put an ad in front of us and we're tired of it. And so, is there a pendulum swing that risks being an overreaction just because of how tired we are of this? [LAUGHS]

Ben Yelin: Yes, I mean I think that point's very well taken and I think that is the reason that we have applications like Signal, is that this is a backlash to an era where all of our data is being collected and we've had these high profile stories of people's personal information being revealed through data breaches, and also through government surveillance. You know, I think what the author of this op ed is trying to say is that any time you have one value that's so paramount that it supersedes all other values, you are making the moral universe simpler than it actually is.

Dave Bittner: Mm.

Ben Yelin: So what he says is the moral fabric of our world is complex, it's nuanced, and sensitivity to moral nuance is difficult but unwavering support of one principle to rule them all is morally dangerous.

Dave Bittner: Yes.

Ben Yelin: I will say, despite looking disfavorably upon this op ed, and looking favorably upon the Cato response to it, I have seen a tendency for people to get into a corkscrew or bad spiral where they start by an adamant defense of one principle, that leads them to courageously defending bad people. But then they kind of go down the rabbit hole and end up just finding too much [LAUGHS] common cause with some of these bad people. And again, bad people are certainly in the eyes of the beholder.

Dave Bittner: Yeah.

Ben Yelin: There's no uniform definition of it. But I have seen just even through some journalists that I follow, and that I've been a fan of in the past, where they are so skeptical of what they see as the US security estate, for example.

Dave Bittner: Yeah.

Ben Yelin: That will first manifest itself in them defending a group like the Oath Keepers because their first amendment rights have been trampled and violated, and that's fine, that's admirable. Everybody deserves constitutional rights and legal representation. But then, you know, once you make common cause with some of these people, you kind of end up spending most of your time in public defending the bad actors and you kind of lose the perspective of why you were fighting for first amendment rights and privacy in the first place.

Dave Bittner: I see.

Ben Yelin: So, I think there is a danger in that, that you do become overly focused on the value that you lose sight of why that value is important and you end up just supporting groups and individuals, you spend your public time, your tweets, your Facebook posts, your Substack posts, defending people that are doing really bad things. So, I do think it's important to step back and be like, well why am I in this in the first place?

Dave Bittner: Right [LAUGHS]. Not lose the forest for the trees. Yea.

Ben Yelin: Exactly. And again, it is in the eye of the beholder, it is subjective. But I've just seen that happen where it starts with a really principled defense of something like privacy, or opposition to the US security state, and it morphs into making common cause with people that I think everyone would recognize as having objectionable views.

Dave Bittner: Yes, that's an interesting point. I suspect most of us, regardless of your political leanings, you can think of someone, a journalist that along the way you've thought to yourself, "What happened to that person?" [LAUGHS] What happened? They went down some path and they're not recognizable from their former self.

Ben Yelin: Yes. Somebody maybe whose name rhymes with Schmarinewald?

Dave Bittner: [LAUGHS]

Ben Yelin: Who really did--

Dave Bittner: Ben, so I was trying to keep it neutral by saying regardless of your political orientation [LAUGHS]. So, thanks.

Ben Yelin: Yes. I definitely ruined it there. I think, to me, he's the foremost example and I'm not going to attack him personally.

Dave Bittner: Right.

Ben Yelin: But I do think he actually has a set of very consistent principles that he's had for a long time.

Dave Bittner: Yeah.

Ben Yelin: And the work he did working with Edward Snowden to uncover some of the dirty secrets of our National Security Agency, was extraordinary and was a remarkable feat of journalism.

Dave Bittner: Yeah.

Ben Yelin: But then he's gotten so far down a rabbit hole of fighting against his perceived enemies, that he ends up making common cause with people that I think if he were to step back and be given truth serum, it's like why are these people your friends? And why are you speaking at their events? You know, and he would defend it. He would say that he's doing it out of that principle. I would say, you know, it's important to keep your perspective and realize that just because you're trying to protect the rights of everybody, doesn't mean you have to go out of your way to make common cause with them.

Dave Bittner: Right.

Ben Yelin: So, that would just be a word of caution. But I assume many people listening to this like this particular journalist far more than they like me or you.

Dave Bittner: [LAUGHS] Count on it.

Ben Yelin: So, I certainly respect that perspective.

Dave Bittner: Address your letters to Ben Yelin at Caveat at the CyberWire.com. [LAUGHS]

Ben Yelin: Exactly. Don't blame Dave on this one.

Dave Bittner: I did my best dear listeners. I did my best. [LAUGHS]

Ben Yelin: Yes. And if I get angry emails about this, yeah, I kind of walked right into that one.

Dave Bittner: There you go. Alright. Well let's move on Ben. [LAUGHS] Let's move on.

Ben Yelin: Good timing.

Dave Bittner: Yes. So, we'll have links to both of those stories in the show notes of course. My story this week comes from the folks over at Ars Technica, this is an article written by Jon Brodkin. And it's titled Supreme Court seeks Biden admin input on Texas and Florida social media laws. This caught my attention for a couple of reasons. Let's start with the top here. Honestly, first thing that perked up my ears was this Supreme Court is asking for the opinion of the Biden administration? [LAUGHS]

Ben Yelin: Yes, so you and I were talking about football when I first came into the office.

Dave Bittner: Right [LAUGHS].

Ben Yelin: I'm a huge fan, you're not as much of a fan, but you--

Dave Bittner: I enjoy it, yes.

Ben Yelin: You enjoy it, you tuned in this weekend and one thing we see a lot of in football games is punting. Your offensive possession has failed, so you punt to the other team, to live another day. That's kind of what the Supreme Court is doing here.

Dave Bittner: OK.

Ben Yelin: I'm not sure it's actually that interested in the input of the Biden administration, although I'm sure it is interested.

Dave Bittner: Yeah.

Ben Yelin: But I think there is a circuit split here. We have two cases, a Texas and a Florida case. The laws are different in some respects, but in many ways similar and I think the Supreme Court is having a hard time determining whether they want to hear this case on the merits.

Dave Bittner: Well, let's back up and explain the circuit split here, the cases and what led us to this being in front of the Supreme Court at all. Can you give us a little of the background?

Ben Yelin: Sure. So, let's start with the Florida law. That law makes it illegal for large social media sites, the Facebooks and Twitters of the world, to ban politicians. That law was blocked by a federal judge and a preliminary injunction and that injunction was upheld by the Court of Appeals for the Eleventh Circuit. They said that that law likely violates the first amendment rights of these social media platforms who have the right to exercise a degree of editorial control.

Dave Bittner: Right, they're private companies.

Ben Yelin: Exactly.

Dave Bittner: You and I have talked about here. This interpretation of the first amendment says that they have the right to include or exclude anybody they want on their platform based on the protected categories.

Ben Yelin: Exactly. And the principle underlying this is our constitutional rights with some exceptions apply against government action and not against private actors, which I why when I was in private school growing up, and some kid invoked their first amendment rights, they'd say, yes, first amendment doesn't give you the right to use swear words in our eighth grade history class [LAUGHS]. We're a private entity and that's not going to save you.

Dave Bittner: OK. [LAUGHS]

Ben Yelin: So, that was the decision in the Eleventh Circuit based on that Florida law. Separately, there was a Texas law, I think we've talked a little bit more about the Texas law on this podcast.

Dave Bittner: Yes. Yes.

Ben Yelin: The law's a little different. It prohibits social media companies from moderating content based on a user's viewpoint. So, it's seeking to outlaw viewpoint discrimination on these platforms. This law too was initially blocked by a federal judge but the injunction blocking that law was stayed by the Court of Appeals for the Fifth Circuit, which I'll note is a notoriously conservative court.

Dave Bittner: OK.

Ben Yelin: And a three judge panel on the Fifth Circuit said that, at least preliminarily, this is a proper action by the Texas state legislature. That they were kind of flirting with this idea that social media companies due to their significant reach and due to the lack of competition among big tech companies, almost serve as public platforms and it's within the interests of a state to try and root out this type of viewpoint discrimination.

Dave Bittner: Mm.

Ben Yelin: So, these cases, even though the laws are slightly different, the outcome of these cases are certainly at odds with one another. It's basically how far do we extend the first amendment rights of these platforms to regulate content as they see fit? I think that's really the essential question this boils down to and I think people are looking to see whether the Supreme Court would take this up. The only hint we had was what happened last year, which is that the Supreme Court as part of their so-called shadow docket, voted to vacate the Fifth Circuit ruling that revived the Texas law.

Dave Bittner: What does that mean?

Ben Yelin: It means that once the Fifth Circuit upheld the Texas law, the Supreme Court voted to overturn that Fifth Circuit ruling, so taking that law back off the books in other words.

Dave Bittner: OK.

Ben Yelin: But then--

Dave Bittner: Without comment?

Ben Yelin: Without comment. There were three vocal dissenters in that decision, three of the conservative justices, and then Justice Kagan dissented from that decision but didn't give a reason for it, which I think is puzzling to a lot of observers.

Dave Bittner: Yeah.

Ben Yelin: The Fifth Circuit Court of Appeals, which had previously restored the social media law, ended up reconsidering the case based on the Supreme Court's admonition and sided with Texas again in a more lengthy ruling in which they had properly explained their reasoning. And they said quote, "We reject the idea that corporations have a free wheeling first amendment right to censor what people say."

Dave Bittner: Can you help me understand the process here?

Ben Yelin: Hopefully.

Dave Bittner: When the Supreme Court made their decision, that wasn't it?

Ben Yelin: It was not it, because they were making a decision about the preliminary injunction, whether it was proper for the Fifth Circuit Court of Appeals to silently stay the lower court decision without considering all the facts and the arguments and having a full hearing.

Dave Bittner: Oh.

Ben Yelin: So, what the Supreme Court was saying is, the process here was inadequate. We are reinstating the District Court decision because the Appeals Court was just a little too hasty. They didn't go through the full procedures to understand the legal implications of this case.

Dave Bittner: I see.

Ben Yelin: So what the Fifth Circuit Court of Appeals did was say, OK, then let's go through the procedures. Let's have hearings, let's have--

Dave Bittner: [LAUGHS] You asked for it.

Ben Yelin: Yes, exactly, and that's what we're going to do. Let's have testimony, and they had all that. They wrote a longer decision explaining their reasoning and now that decision is back in front of the Supreme Court for the Supreme Court's consideration.

Dave Bittner: I see. And that's where we stand today?

Ben Yelin: That's where we stand. So, we're not going to have oral arguments on either of these cases for the time being. I think the court really does want to hear what the Justice Department has to say about this and I'm sure the Justice Department will write in with some type of amicus brief, friend of the court brief, saying the Justice Department believes, and I would guess that this is what they're going to say although I'm not 100 percent sure, but they'll probably say that they do think that these companies have a first amendment right to moderate content as they see fit, as private companies. It's possible that the Solicitor General, if these cases do make it to oral argument, will argue the side of the Eleventh Circuit in Florida, right alongside some of the attorneys in that original case.

Dave Bittner: Hm.

Ben Yelin: So, they could end up being a quasi party, once this comes into oral arguments. But again, this is also a tactic to kind of delay the consideration of these two cases. It's possible that the court is having difficulty even forming a consensus as to whether to grant certiorari, whether to hear this case on the merits and this might have been an intermediate step to get some input from the Biden administration, the Justice Department, before they make that final decision.

Dave Bittner: And would the Supreme Court bundle these two together because of the split with the circuits?

Ben Yelin: I would guess that they would hear them separately. There will be two separate oral arguments but their decisions will be relatively reflective of one another. It's usually the type of thing where if you have two similar cases like this, they're heard separately but the decisions are released on the same day. So that you get kind of a snapshot of where the Justices think the law is on this issue.

Dave Bittner: I see.

Ben Yelin: You know, because the statutes are different, and because we're dealing with a different set of facts and parties, I don't think it would be appropriate to hear this as a consolidated case. But I do think the outcome in one case is going to be heavily influenced by the outcome of the other case. Now it's possible, maybe there was a procedural defect in one of the cases, and maybe they don't get to the merits of that case. Maybe they only decide the Texas case because the lawyer in the Florida case [LAUGHS] didn't file the Appeal within the proper time frame or something.

Dave Bittner: Right.

Ben Yelin: But my guess is that these will be released concurrently, but in two separate cases.

Dave Bittner: Do you have any sense for how this Supreme Court might view something like this?

Ben Yelin: So, we only have bits and pieces, based on past writing of the Justices. We've talked about how Justice Thomas, who is one of, if not the most conservative Justice on the court, has suggested that we might need to reconsider how we look at some of these big tech companies, and their power to moderate content, more in the context of a common carrier. So, like a cable company or a railroad where these are private companies, but they perform a certain type of public function, and should be regulated as such.

Dave Bittner: OK.

Ben Yelin: There's some indication that at least a couple of the other conservative Justices are amenable to that argument, and then we got that mini view into the mind of Justice Kagan when she dissented in that decision to kick the case back to the Texas court. But I don't think we have any firm indication one way or another about how five Justices think on this issue. We're kind of just reading the tea leaves at this point.

Dave Bittner: Yeah. Do you think it's inevitable that this issue's going to make it to the Supreme Court?

Ben Yelin: I do. Yes. I think because of the high profile nature of this issue, because we have a circuit split, and because clearly the Supreme Court is interested in it, they didn't just reject it outright they said, hey we'd like the Justice Department to weigh in on it, I think those are all strong indications that probably by next Fall we'll have oral arguments in these two cases.

Dave Bittner: Alright. Well, we'll get our popcorn out [LAUGHS]. Be ready for--

Ben Yelin: We sure will, yeah.

Dave Bittner: That's right. [LAUGHS] Alright well we will have a link to that story in the show notes. We would love to hear from you. If there's something you'd like us to discuss here on the show, you can email us. It's caveat@thecyberwire.com.

Dave Bittner: So, let's return to our sponsor KnowBe4's question. How can you see risk coming, especially when that risk comes from third parties? After all, it's not your risk until it is. Here's step one. Know what those third parties are up to. KnowBe4 has a full GRC platform that helps you do just that. It's called KCM and its vendor risk management module gives you the insight into your suppliers that you need to be able to assess and manage the risks they might carry with them, into your organization. With KnowBe4's KCM, you can vet, manage and monitor your third party vendor's security risk requirements. You'll not only be able to pre-qualify the risk, you'll be able to keep track of that risk as your business relationship evolves. KnowBe4's standard templates are easy to use and they give you a consistent, equitable way of understanding risk across your entire supply chain and as always, you'll get this in an effective automated platform that you'll see in a single pane of glass. You'll manage risk twice as fast at half the cost.

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Dave Bittner: Ben, it is always a treat when Carole Theriault contributes content to our CyberWire shows here, and today is no exception to that. She has a really fascinating discussion with Rory Cellan Jones, he's a former BBC reporter and they're discussing health care and the digitization of that. Here's Carole Theriault speaking with Rory Cellan Jones.

Carole Theriault: I am thrilled today to be chatting with the celebrated Rory Cellan Jones. If you are outside the UK you may not know him, but you could think of him as I do, the David Attenborough of technology. [LAUGHS] I knew that would make you laugh, but it's true.

Rory Cellan Jones: That's really sweet of you. [LAUGHS]

Carole Theriault: It's true. And it's well deserved. Now Rory, why don't you share a little bit about your background for our listeners?

Rory Cellan Jones: Well, I worked for one organization for 40 years, which is above and beyond these days. I worked for the BBC for 40 years until a year ago, and for much of the last 20 years, I was the BBC's technology correspondent. In particular, covering the whole smart phone era. If you think of the smart phone era as starting with the unveiling of the iphone by Steve Jobs in 2007 and I was there when that happened, that was the meat and drink of my career, the extraordinary period that followed that, and how much changed.

Carole Theriault: And you've also written a few books?

Rory Cellan Jones: Yes, I wrote a book 20 years ago about the dot com bubble, and I wrote a book that came out last year about that smart phone era and how those miraculous little devices in all our pockets combined with social media, produced an extraordinary powerful force in our lives, which at first we thought was almost universally for the good, and then we began to worry about it a bit. So, yes.

Carole Theriault: And you're very busy, you also run a blog on Substack? Is that a blog?

Rory Cellan Jones: Well yes, it's a newsletter. It's today's blog, let's be honest isn't it?

Carole Theriault: [LAUGHS]

Rory Cellan Jones: That's what Substack is. 20 years ago, 15 years ago, you started a blog, now you start a Substack.

Carole Theriault: That's right. And it's called Rory's Always On newsletter and you write on your about page, quote, "I spent 15 years as BBC technology correspondent in a period where the smart phone and social media changed just about everything, but had surprisingly little impact on health care." And that's a fascinating point, can you expand on that a little?

Rory Cellan Jones: Yeah. Looking in my book at the impact of the smart phone, what very much came to mind was Peter Thiel's famous quote about "We were promised flying cars, and we got 140 characters." Of course which became [LAUGHS] 280 characters with Twitter, making the point that it was all a bit trivial. Yet these devices have the power, the potential, to transform health care and I was frustrated with how slowly that has been happening and wanted to track that in this newsletter. And I've got a particular interest in it both professionally and personally in that I have two long term conditions, one of them being Parkinson's, and would like to see this technology start delivering some benefits in those areas.

Carole Theriault: So, what are some of the limitations that you've encountered? The things that you have found frustrating as a patient?

Rory Cellan Jones: Well, the technology arrives, and it has extraordinary potential. But then it comes up against health care management and health care organizations which move quite slowly. Sometimes for very good reasons. If we think about Theranos, the scandal of the Theranos company, with its supposedly brilliant blood testing technology.

Carole Theriault: Fascinating, that whole story was.

Rory Cellan Jones: But there was one venture capitalist who backed Elizabeth Holmes, the CEO, right to the end and said, effectively, "Well you know, you've got to try a few things, and sometimes they go wrong and sometimes you just move on."

Carole Theriault: Mm.

Rory Cellan Jones: He had this sort of move fast and break things attitude, which is pervasive in Silicon Valley, that just doesn't work in health care for obvious reasons. So, I interviewed recently a brilliant eye surgeon who also works some of the time for Google's deep mind AI unit. And he had developed an algorithm which would effectively triage the millions of eye scans that are now produced by high street optometrists and which are flooding our National Health Service and creating a problem, frankly, because we've got this brilliant technology, and it produces a lot of false positives. You haven't got the staff to actually understand those scans.

Carole Theriault: Ah.

Rory Cellan Jones: And he developed an AI optometrist basically, an AI expert in understanding them and saying that's bad, that isn't. But what he said to me, and this was a couple of years ago now, idea to algorithm, idea to code, maybe two years. Code to clinic, I.e. get it actually in use by doctors, a hell of a lot longer. So, there's the technology and then there's the whole bureaucratic infrastructure, as I said its bureaucratic often for good reasons, the regulatory infrastructure. And that's not great in this country, in the UK, and I think it's very variable. For instance, in the United States, it depends very much on local health care providers and insurers and so on, how rapidly they can channel innovation into actual patient care.

Carole Theriault: Mm.

Rory Cellan Jones: But what's happening in this country is that gradually that interaction between patients and doctors is being digitized, is being made better. I did laugh the other day, I was involved in chairing a panel at the Medical Technology Conference, on something called Patient Centric Care. And they laughed when I said, "Well what other kind is there?" Oh, as if [INAUDIBLE] and it became clear that for years there'd been what you might call product centric care, i.e. it was all about flogging this pill or that treatment.

Rory Cellan Jones: But gradually, patient centric care is becoming a thing. Every new drug now is probably going to come with an app to guide the patient and maybe provide feedback to the doctor about how the drug is working. There's a lot of work going on in using smart phones. This is coming back to where we started, the benefits of smart phone technology to provide that interaction between patient and doctor, and to provide remote monitoring.

Carole Theriault: Mm.

Rory Cellan Jones: I was in the eye hospital I visit regularly the other day and they were promoting an app where you could do your own eye test at home. Patients who were, you know, being monitored didn't necessarily need to come in to have their eyes tested. They could do their own eye test using this app and that would be analyzed probably by an algorithm, and if there was something of concern then they would be called in.

Carole Theriault: Wow. So, the future's bright in a way, because there's no other route. The technology and health care will eventually mesh together invisibly into this one new [LAUGHS] kind of vortex of health, I imagine?

Rory Cellan Jones: Well there will be all sorts of problems along the way and arguments about ethics. You know, there's all sorts of arguments around, as we know, the ethics of AI.

Carole Theriault: Yeah.

Rory Cellan Jones: Whether we trust it to make those decisions, to say this person needs to be seen, this person doesn't. But yes, gradually the promise, and it's been a promise for a long time, of that combination of smart phones and artificial intelligence, I think will be realized.

Carole Theriault: If you guys want to follow this rocky journey, please follow Rory on Rory's Always On newsletter. Rory, thank you so much for coming on the show. It's an absolute pleasure to speak with you.

Rory Cellan Jones: It's been great fun.

Dave Bittner: Ben, what do you think?

Ben Yelin: Oh, such a great interview and really a compelling guest. He's had 40 years of media experience, and he's had his own experience in the health care system, which is obviously very different from ours.

Dave Bittner: Yeah.

Ben Yelin: But I think some of the values that he talked about, how that technology is great and promising, but if we don't know how to use it properly it's not going to accrue to the benefit of patients. I thought that was really fascinating and the fact that there's even a question as to whether we should pursue patient centered health care, it was just interesting to hear him invoke that. So, I thought that was a really interesting interview.

Dave Bittner: Yes absolutely. Again, our thanks to Carole Theriault, and Rory Keflin Jones for joining us. We do appreciate them taking the time.

Dave Bittner: And we want to thank our sponsors, KnowBe4. They are the social engineering experts and the pioneers of new school security awareness training. Be sure to take advantage of their free phishing test, which you can find at knowbe4.com/phishtest. Think of KnowBe4 for your security training.

Dave Bittner: That is our show. We want to thank all of you for listening. The Caveat podcast is proudly produced in Maryland at the start up studios of Data Tribe, where they're co-building the next generation of cyber security teams and technologies. Our senior producer is Jennifer Eiben, our executive editor is Peter Kilpe, I'm Dave Bittner.

Ben Yelin: And I'm Ben Yelin.

Dave Bittner: Thanks for listening.