Further Reading, Other Developments, and Coming Events (21 July)

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Here are Further Reading, Other Developments, and Coming Events.

Coming Events

• The Federal Trade Commission (FTC) will hold its fifth annual PrivacyCon on 21 July and has released its agenda.
• On 22 July, the Senate Homeland Security & Governmental Affairs Committee will markup a number of bills and nominations, including:
  • The nomination of Derek Kan to the Office of Management and Budget’s Deputy Director
  • The “Federal Emergency Pandemic Response Act” (S.4204)
  • The “Securing Healthcare and Response Equipment Act of 2020” (S.4210)
  • The “National Response Framework Improvement Act of 2020” (S.4153)
  • The “National Infrastructure Simulation and Analysis Center Pandemic Modeling Act of 2020” (S.4157)
  • The “PPE Supply Chain Transparency Act of 2020” (S.4158)
  • The “REAL ID Act Modernization Act” (S.4133)
  • The “Safeguarding American Innovation Act” (S.3997)
  • The “Information Technology Modernization Centers of Excellence Program Act” (S.4200)
  • The “Telework for U.S. Innovation Act” (S.4318)
  • The “GAO Database Modernization Act” (S.____)
  • The “CFO Vision Act of 2020” (S.3287)
  • The “No Tik Tok on Government Devices Act” (S. 3455)
  • The “Cybersecurity Advisory Committee Authorization Act of 2020” (S. 4024)
• On 23 July, the Senate Commerce, Science, and Transportation Committee’s Communications, Technology, Innovation, and the Internet Subcommittee will hold a hearing on “The State of U.S. Spectrum Policy” with the following witnesses:
  • Mr. Tom Power, Senior Vice President and General Counsel, CTIA
  • Mr. Mark Gibson, Director of Business Development, CommScope
  • Dr. Roslyn Layton, Visiting Researcher, Aalborg University
  • Mr. Michael Calabrese, Director, Wireless Future Project, Open Technology Institute at New America
• On  27 July, the House Judiciary Committee’s Antitrust, Commercial, and Administrative Law Subcommittee will hold its sixth hearing on “Online Platforms and Market Power” titled “Examining the Dominance of Amazon, Apple, Facebook, and Google” that will reportedly have the heads of the four companies as witnesses.
• On 6 August, the Federal Communications Commission (FCC) will hold an open meeting to likely consider the following items:
  • C-band Auction Procedures – The Commission will consider a Public Notice that would adopt procedures for the auction of new flexible-use overlay licenses in the 3.7–3.98 GHz band (Auction 107) for 5G, the Internet of Things, and other advanced wireless services. (AU Docket No. 20-25)
  • Radio Duplication Rules – The Commission will consider a Report and Order that would eliminate the radio duplication rule with regard to AM stations and retain the rule for FM stations. (MB Docket Nos. 19-310. 17-105)
  • Common Antenna Siting Rules – The Commission will consider a Report and Order that would eliminate the common antenna siting rules for FM and TV broadcaster applicants and licensees. (MB Docket Nos. 19-282, 17-105)
  • Telecommunications Relay Service – The Commission will consider a Report and Order to repeal certain TRS rules that are no longer needed in light of changes in technology and voice communications services. (CG Docket No. 03-123)
  • Inmate Calling Services – The Commission will consider a Report and Order on Remand and a Fourth Further Notice of Proposed Rulemaking that would respond to remands by the U.S. Court of Appeals for the District of Columbia Circuit and propose to comprehensively reform rates and charges for the inmate calling services within the Commission’s jurisdiction.  (WC Docket No. 12-375)

Other Developments

• A United States court has denied a motion by an Israeli technology company to dismiss an American tech giant’s suit that the former infected its messaging system with malware for purposes of espionage and harassment. In October 2019, WhatsApp and Facebook filed suit against the Israeli security firm, NSO Group, alleging that in April 2019, it sent “malware to approximately 1,400 mobile phones and devices…designed to infect the Target Devices for the purpose of conducting surveillance of specific WhatsApp users.” This step was taken, Facebook and WhatsApp claim, in order to circumvent WhatApp’s end-to-end encryption. The social media companies are suing “for injunctive relief and damages pursuant to the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, and the California Comprehensive Computer Data Access and Fraud Act, California Penal Code § 502, and for breach of contract and trespass to chattels.” In the District Court’s ruling from last week, it rejected the NSO Group’s claims that it deserved sovereign immunity from the lawsuit because it was working for sovereign governments among others and will allow WhatsApp and Facebook to proceed with their suit.
• The European Data Protection Supervisor (EDPS) published a report “on how EU institutions, bodies and agencies (EUIs) carry out Data Protection Impact Assessments (DPIAs) when processing information that presents a high risk to the rights and freedom of natural persons” according to the EDPS’ press release. The EDPS detailed its lessons learned, suggestions on how EU institutions could execute better DPIAs, and additional guidance on how DPIAs should be performed in the future.
• The Court of Justice of the European Union’s (CJEU) Advocate General Saugmandsgaard Øe rendered his opinion in case concerning the possible lability of YouTube and Uploaded for a user posting copyrighted materials without the consent of the owners. In a CJEU summary, Øe found “as EU law currently stands, online platform operators, such as YouTube and Uploaded, are not directly liable for the illegal uploading of protected works by the users of those platforms.” Øe noted that “Directive  2019/790 on  copyright  and  related rights  in  the  Digital  Single  Market introduces, for online platform operators such as YouTube, a new liability regime specific to works illegally uploaded by  the  users  of  such  platforms….which  must  be  transposed  by  each Member State into its national law by 7 June 2021at the latest, requires, inter alia, those operators to obtain an authorisation from the rightholders, for example by concluding a licensing agreement, for the works uploaded by users of their platforms.” The Advocate General’s decisions are not binding but work to inform the CJEU as it decides cases, but it is not uncommon for the CJEU to incorporate the Advocate General’s findings in their decisions.
• The United Kingdom’s Parliament’s House of Lords’ Select Committee on Democracy and Digital Technologies released its report regarding “a pandemic of ‘misinformation’ and ‘disinformation’…[that] [i]f allowed to flourish these counterfeit truths will result in the collapse of public trust, and without trust democracy as we know it will simply decline into irrelevance.” The committee explained the report “addresses a number of concerns, including the urgent case for reform of electoral law and our overwhelming need to become a digitally literate society” including “forty-five  recommendations  which,  taken  together,  we  believe could serve as a useful response to a whole series of concerns.”
• Belgium’s data protection authority, the Autorité de protection des données, has fined Google €600,000 for violations related to the company’s failure to heed the right to be forgotten as enforced under the General Data Protection Regulation (GDPR).  
• The National Institute of Standards and Technology (NIST) released two crosswalks undertaken by outside entities comparing the NIST Privacy Framework: A Tool for Improving Privacy through Enterprise Risk Management to the General Data Protection Regulation (GDPR) and ISO/IEC 27701, private sector privacy guidance:
  • The Enterprivacy Consulting Group’s crosswalk for the GDPR-Regulation 2016/679.
  • Microsoft’s crosswalk for ISO/IEC 27701.
• Senator Josh Hawley (R-MO) sent Twitter CEO Jack Dorsey a second letter regarding the Twitter hack and asserted:
  • [R]eports also indicate that screenshots of Twitter’s internal tools have been circulating within the hacking community. One such screenshot indicates that Twitter employs tools allowing it to append “Search Blacklist,” “Trends Blacklist,” “Bounced,” and “ReadOnly” flags to user accounts. Given your insistence in testimony to Congress that Twitter does not engage in politically biased “shadowbanning” and the public interest in Twitter’s moderation practices, it is notable that Twitter reportedly suspended user accounts sharing screenshots of this panel.
  • Hawley posed a series of questions seeking to root out a bias against conservative viewpoints on the platform, a frequently leveled charge.
• The Ranking Members of the House Foreign Affairs Committee, House Energy and Commerce Committee, and House Financial Services Committee wrote President Donald Trump to “encourage you to consider utilizing your ability under existing authorities to sanction PRC-linked hackers” for “targeting U.S. institutions and “attempting to identify and illicitly obtain valuable intellectual property (IP) and public health data related to vaccines, treatments, and testing from networks and personnel affiliated with COVID-19-related research.” In a May unclassified public service announcement, the Federal Bureau of Investigation (FBI) and CISA named the People’s Republic of China as a nation waging a cyber campaign against U.S. COVID-19 researchers. The agencies stated they “are issuing this announcement to raise awareness of the threat to COVID-19-related research.” Last week, The United Kingdom’s National Cyber Security Centre (NCSC), Canada’s Communications  Security Establishment (CSE), United States’ National Security Agency (NSA) and the United States’ Department of Homeland Security’s Cybersecurity and Infrastructure Security  Agency (CISA) issued a joint advisory on a Russian hacking organization’s efforts have “targeted various organisations involved in COVID-19 vaccine development in Canada, the United States and the United Kingdom, highly likely with the intention of stealing information and intellectual property relating to the development and testing of COVID-19 vaccines.”

Further Reading

• “Twitter’s security holes are now the nation’s problem“ – Politico; “Twitter hack triggers investigations and lawmaker concerns” – The Washington Post; “Hackers Convinced Twitter Employee to Help Them Hijack Accounts” – Vice’s Motherboard; “Twitter Struggles to Unpack a Hack Within Its Walls” and “Hackers Tell the Story of the Twitter Attack From the Inside” – The New York Times. After the hacking last week that took over a number of high profile people’s accounts (e.g. Barack Obama, Bill Gates, Elon Musk, etc.), policymakers in Washington are pressing Twitter for explanations and remediation to prevent any such future attacks, especially in the run up to the 2020 election. Reportedly, a group of hackers looking to push a Bitcoin scam took over accounts of famous people and then made it appear they were selling Bitcoin. Republicans and Democrats in the United States’ capital are alarmed that such a hack by another nation could throw the country and world into chaos. One media outlet is reporting the hackers provided proof they bribed a Twitter employee with access to administrative credentials to pull off the hack. Another is reporting that a hacker got into Twitter’s Slack channel where the credentials were posted. Nonetheless, the Federal Bureau of Investigation (FBI) has opened an inquiry. It is unclear whether the hackers accessed people’s DM’s, and Senator Ron Wyden (D-OR) noted he has secured a commitment from the company in 2018 to use encryption to secure DMs that has not yet been implemented. The company will have to answer more tough questions at a time when it is in the crosshairs of the rump Administration for alleged abuses of 47 U.S.C. 230 in stifling conservative viewpoints after the platform fact checked the President and has taken down a range of accounts. And, of course, working in the background is the company’s 2011 settlement with the Federal Trade Commission (FTC) in which the agency claimed Twitter violated the FTC Act by “engag[ing] in a number of practices that, taken together, failed to provide reasonable and appropriate security to: prevent unauthorized access to nonpublic user information and honor the privacy choices exercised by its users in designating certain tweets as nonpublic…[and by] fail[ing] to prevent unauthorized administrative control of the Twitter system.” If the agency investigates and finds similar misconduct, they could seek sizeable monetary damages in federal court.
• “F.T.C.’s Facebook Investigation May Stretch Past Election” – The New York Times. Even though media accounts say the United States Department of Justice will bring an antitrust action against Google possibly as early as this month, it now appears the Federal Trade Commission (FTC) will not be bringing a case against Facebook until next year. It appears the agency is weighing whether it should depose CEO Mark Zuckerberg and COO Sheryl Sandberg and has made additional rounds of document requests, all of which has reportedly slowed down the investigation. Of course, should the investigation stretch into next year, a President Joe Biden could designate a new chair of the agency, which could change the scope and tenor of the investigation.
• “New Emails Reveal Warm Relationship Between Kamala Harris And Big Tech” – HuffPost. Obtained via an Freedom of Information request, new email from Senator Kamala Harris’ (D-CA) tenure as her state’s attorney general suggest she was willing to overlook the role Facebook, Google, and others played and still play in one of her signature issues: revenge porn. This article makes the case Harris came down hard on a scammer running a revenge porn site but did not press the tech giants with any vigor to take down such material from their platforms. Consequently, the case is made if Harris is former Vice President Joe Biden’s vice presidential candidate, this would signal a go easy approach on large companies even though many Democrats have been calling to break up these companies and vigorously enforce antitrust laws. Harris has largely not engaged on tech issues during her tenure in the Senate. To be fair, many of these companies are headquartered in California and pump billions of dollars into the state’s economy annually, putting Harris in a tricky position politically. Of course, such pieces should be taken with a grain of salt since it may have been suggested or planted by one of Harris’ rivals for the vice president nomination or someone looking to settle a score.
• “Inside Big Tech’s Years-Long Manipulation Of American Op-Ed Pages” – Big Technology from Alan Krantowitz. To no great surprise, large technology companies have adopted a widely used tactic of getting someone sympathetic to “write” an op-ed for a local newspaper to show it is not just big companies pushing for a policy. In this case, it was, and likely still is, the argument against breaking up the tech giants or regulating them more closely. In one case, it is not clear the person who allegedly “wrote” the article actually even knew about it.
• “Trump campaign pushes Facebook ads bashing TikTok” – CNN. The White House is using new means to argue TikTok poses a threat to Americans and national security: advertisements on Facebook by the Trump campaign. The ads repeated the same basic message that has been coming out of the White House that TikTok has been denying: that the app collects and sends user sensitive user data to the People’s Republic of China (PRC). Another wrinkle TikTok pointed to is that Facebook is readying a competitor, Instagram Reels, set to be unveiled as early as this week.

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