Further Reading, Other Developments, and Coming Events (28 July)

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

Coming Events

• On 28 July, the House Rules Committee will consider the rule for and amendments to the H.R. 7617—Department of Defense Appropriations Act, 2021 [Defense, Commerce, Justice, Science, Energy and Water Development, Financial Services and General Government, Homeland Security, Labor, Health and Human Services, Education, Transportation, Housing, and Urban Development Appropriations Act, 2021].
• On 28 July, the Senate Commerce, Science, and Transportation Committee’s Communications, Technology, Innovation, and the Internet Subcommittee will hold a hearing titled “The PACT Act and Section 230: The Impact of the Law that Helped Create the Internet and an Examination of Proposed Reforms for Today’s Online World.”
• On 28 July the House Science, Space, and Technology Committee’s Investigations and Oversight and Research and Technology Subcommittees will hold a joint virtual hearing titled “The Role of Technology in Countering Trafficking in Persons” with these witnesses:
  • Ms. Anjana Rajan, Chief Technology Officer, Polaris
  • Mr. Matthew Daggett, Technical Staff, Humanitarian Assistance and Disaster Relief Systems Group, Lincoln Laboratory, Massachusetts Institute of Technology
  • Ms. Emily Kennedy, President and Co-Founder, Marinus Analytics
• On  29 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 30 July the House Oversight and Reform Committee will hold a hearing on the tenth “Federal Information Technology Acquisition Reform Act” (FITARA) scorecard on federal information technology.
• On 30 July, the Senate Commerce, Science, and Transportation Committee’s Security Subcommittee will hold a hearing titled “The China Challenge: Realignment of U.S. Economic Policies to Build Resiliency and Competitiveness” with these witnesses:
  • The Honorable Nazak Nikakhtar, Assistant Secretary for Industry and Analysis, International Trade Administration, U.S. Department of Commerce
  • Dr. Rush Doshi, Director of the Chinese Strategy Initiative, The Brookings Institution
  • Mr. Michael Wessel, Commissioner, U.S. – China Economic and Security Review Commission
• On 4 August, the Senate Armed Services Committee will hold a hearing titled “Findings and Recommendations of the Cyberspace Solarium Commission” with these witnesses:
  • Senator Angus S. King, Jr. (I-ME), Co-Chair, Cyberspace Solarium Commission
  • Representative Michael J. Gallagher (R-WI), Co-Chair, Cyberspace Solarium Commission
  • Brigadier General John C. Inglis, ANG (Ret.), Commissioner, Cyberspace Solarium Commission
• 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

• The United States’ (US) Office of Management and Budget (OMB), an agency within the Executive Office of the President, has issued a memorandum in the same vein as other Trump Administration initiatives to increase the US government’s buying of goods and services produced domestically. Noting that 40% of the funds provided by Congress through annual legislation will be spent between 1 July and 30 September (roughly $200 billion), OMB urged federal agencies “to keep the following considerations in mind to support timely awards and maximize return on investment from each taxpayer dollar” among others:
  • Take full advantage of acquisition flexibilities and innovative tools. This week, the President’s Management Agenda unveiled a new cross-agency priority goal (CAP Goal) on “frictionless acquisition.” This CAP Goal creates a management platform to leverage modem buying strategies that have been shown to achieve just-in-time delivery with improved customer satisfaction and enable access to a broader and more innovative suite of companies and solutions. Agencies can review the resources on acquisition innovation and opportunities for collaboration by going to the frictionless CAP Goal on performance.gov.
    • The Goal Statement of this new CAP is “The Federal Government will deliver commercial items at the same speed as the market place & manage customers’ delivery expectations for acquisitions of non-commercial items by breaking down barriers to entry using modern business practices and technologies” as explained in a detailed presentation on frictionless acquisition released this month.
  • Use the resources of category management. As part of the ongoing transformation of federal acquisition, procurement involving common needs has been organized around categories of spending led by market experts who share business intelligence and help agencies avoid duplicative contracting work. This business structure has saved taxpayers more than $27 billion since FY 2016 and made it much easier for buyers to make rapid, well­ informed decisions on how best to acquire IT hardware, security, consulting services and many other every day needs that account for more than half of all contract spending. To stay current with market trends and available federal solutions, agencies should bookmark the category management dashboards on the acquisition gateway at https://hallways.cap.gsa.gov/app/#/.
  • Buy American. E.O. 13881 strengthens the general preference for American-made goods and, for the first time in 65 years, increases the percentage of U.S. manufactured content that must be in a product to qualify for the preference, including a very high standard for iron and steel. Agencies are encouraged to work with the Federal Acquisition Regulatory Council (FAR Council) to consider early implementation, as appropriate, while the rulemaking process proceeds.
  • In a related memorandum issued earlier this month, OMB asserted
    • Under the President’s Management Agenda and the leadership of OMB ‘s Office of Federal Procurement Policy (OFPP), the Administration has elevated the importance of acquisition innovation and category management as key pillars of a modernized procurement system. These pillars are proving to be critical assets in the face of market conditions that require heightened agility and the ongoing need r physical distancing as communities take steps to reopen. We are seeing smart use of existing contract vehicles and resources, supported by our category management market experts, such as for cleaning and distinction, information technology related to telework and healthcare, and enhanced entry screening services. We are also seeing growing examples of agencies leveraging innovative business practices, such as virtual acquisitions, that save time and enable acquisitions to continue where they might otherwise have been stopped.
    • OMB went on to detail best practices and examples in how agencies have adapted their procurement authority to the pandemic commensurate with ongoing Administration priorities such as category management
• Senator Amy Klobuchar (D-MN) and some of her Democratic colleagues wrote Attorney General William Barr “to raise serious concerns regarding Google LLC’s (Google) proposed acquisition of Fitbit, Inc. (Fitbit)”. They stated
  • We are aware that the Antitrust Division of the Department of Justice is investigating this transaction and has issued a Second Request to gather additional information about the acquisition’s potential effects on competition. Amid reports that Google is offering modest, short-term concessions to overseas enforcers to avoid a full-scale investigation of the transaction in Europe, we write to urge the Division to continue with its efforts to conduct a thorough and comprehensive review of this proposed merger and to take any and all enforcement action warranted by the law and the evidence.
  • This letter comes at a time when the Department of Justice is considering Google’s potential antitrust practices and whether to file suit. The European Commission is also investigating the Google acquisition of FitBit.
  • Klobuchar is the Ranking Member of the Senate Judiciary Committee’s Antitrust, Competition Policy and Consumer Rights Subcommittee and was joined on the letter by Senators Richard Blumenthal (D-CT), Cory Booker (D-NJ), Mazie K. Hirono (D-HI), Sherrod Brown (D-OH), Mark Warner (D-VA), and Elizabeth Warren (D-MA).
• Facebook and members of a class action and their attorneys have reached a second settlement in a suit brought under Illinois’ “Biometric Information Privacy Act” after a first settlement was rejected by the judge overseeing Patel, et al. v. Facebook, Inc.,. In January, the plaintiffs and Facebook agreed on a $550 million settlement to resolve claims the social media giant used and stored  people’s images contrary to the Illinois ban on such practices absent explicit consent. Facebook faced liability of up to $5000 per person affected and more than $40 billion in total potential liability. However, the judge thought the settlement was too low considering the Illinois legislature expressed its intention that violations would be punished more on the order of $1000 per person. Now, the parties have added $100 million, arriving at a $650 million settlement the judge will still need to bless.
• Secretary of State Mike Pompeo made a speech at the Ronald Reagan Library “to make clear that the threats to Americans that President Trump’s China policy aims to address are clear and our strategy for securing those freedoms established.” Pompeo’s speech in the fourth in a series of Trump Administration officials making the Administration’s case against the People’s Republic of China (PRC), in some cases conflating PRC’s vying with the United States worldwide with the COVID-19 pandemic, suggesting the PRC is responsible for the course of the virus in the US and not Trump Administration policy.
• The Department of Defense’s National Security Agency (NSA) and Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) “released an advisory for critical infrastructure Operational Technology (OT) and Industrial Controls Systems (ICS) assets to be aware of current threats we observe, prioritize assessing their cybersecurity defenses and take appropriate action to secure their systems.” The agencies asserted “[d]ue to the increase in adversary capabilities and activities, the criticality to U.S. national security and way of life, and the vulnerability of OT systems, civilian infrastructure makes attractive targets for foreign powers attempting to harm to US interests or retaliate for perceived US aggression.”
• The Secretary of Defense released a memorandum for Department of Defense (DOD) regarding “poor Proper Operations Security (OPSEC) practices within DOD in the past have resulted in the unauthorized disclosure or ” leaks” of controlled unclassified information (CUI), including information to be safeguarded under the CUI category for OPSEC, as well as classified national security information (together referred to here as “non-public information”). Secretary of Defense Mark Esper asserted “[o]ngoing reviews reveal a culture of insufficient OPSEC practices and habits within the DOD” and stated “[m]y goal, through an OPSEC campaign, is to change that culture across DOD by reminding DOD personnel.”
• The United Kingdom’s Information Commissioner’s Office (ICO) published its annual report for 2019-2020, “covering what the Information Commissioner has called a “transformative period” for privacy and data protection and broader information rights.” The ICO offered these highlights:
  • Supporting and protecting the public and organisations
    • The Age Appropriate Design Code, introduced by the Data Protection Act 2018, was published in January. When it comes into full effect, it will help steer businesses to comply with current information rights legislation.
    • We intervened in the High Court case on the use of facial recognition technology by the South Wales Police as part of our work to ensure that the use of this technology does not infringe people’s rights.  As a response to the judgement, we issued the first Commissioner’s Opinion.
    • Guidance for businesses and organisations on data protection and Brexit implementation was published to help them comply with the law once the UK leaves the EU.
    • Our new freedom of information strategy was launched which sets out how we work to create a culture of openness in public authorities.  It also commits us to making the case for reform of the access to information law as set out previously in our Outsourcing Oversight report.
    • In figures:
      • We received 38,514 data protection complaints.
      • We closed 39,860 data protection cases (up from 34,684 in 2018/19) .
      • We received 6,367 freedom of information complaint cases.
  • Enforcement
    • We took regulatory action 236 times in response to breaches of the legislation that we regulate. That included 54 information notices, eight assessment notices, seven enforcement notices, four cautions, eight prosecutions and 15 fines.  
    • Over 2,100 investigations were conducted.
    • We settled a case with Facebook, which had been brought under the Data Protection Act 1998.
  • Innovation
    • Through our successful regulatory sandbox service, we have worked with a number of innovative organisations of all sizes to explore new data uses in a safe way while helping to ensure their customers’ privacy.
    • We also received additional resources from the government’s regulators innovation fund to set up a hub with other regulators to streamline and reduce burdens on businesses and public services using data.
    • Our research grants programme has encouraged innovative research into privacy and data protection issues.
    • In January, we launched our consultation on an AI framework to allow the auditing and assessment of the risk associated with AI applications and how to ensure their use is transparent, fair and accountable.
  • International
    • On a global scale, we continue to chair the Global Privacy Assembly, driving forward the development of the assembly into an international network that can have an impact on key data protection issues across the year. This helps to protect UK citizen’s personal data as it crosses borders and helps UK businesses operating internationally.
    • Due to the period covered by the report it does not reflect the impact of COVID-19 although, acknowledging the pandemic, Ms Denham said: ”The digital evolution of the past decade has accelerated at a dizzying speed in the past few months. Digital services are now central to how so many of us work, entertain ourselves and talk to friends and family.”
    • But she added: ”The law has not changed, and the ICO continues to be a proportionate and practical regulator.”

Further Reading

• “The Twitter Hacks Have to Stop” – The Atlantic. Bruce Schneier makes the case that the United States and other western democracies must step in and regulate vital platforms like Twitter for security and size given the central role they play in most societies. Letting these companies implement their own security without oversight or transparency has led to a situation where the account of world leaders or government agencies are vulnerable to hacks and misinformation. Schneier thinks the size and dominance of Twitter, Facebook, etc is a major part of this problem that must also be addressed.
• “US and Australia set to launch campaign to counter disinformation” – Sydney Morning Herald. Two of the Five Eyes allies met in Washington on 27 July for their annual Australia-U.S. Ministerial Consultations (AUSMIN) and part of their planning on how to counter the People’s Republic of China (PRC) is working together on an effort to address the PRC’s disinformation campaigns. The already close relationship between Washington and Canberra has deepened as tensions between the United States (US) and PRC continue to escalate. However, the US and Australia are framing this initiative as aiming to counter all disinformation in the Indo-Pacific region, suggesting other nations may be waging disinformation campaigns of concern, including the Russian Federation and the Democratic People’s Republic of Korea.
• “Russia’s GRU Hackers Hit US Government and Energy Targets” – WIRED. Starting in December 2018, APT28 (aka Fancy Bear), a Russian hacking group, targeted and penetrated a number of United States (US) entities, including federal and state governments, educational institutions, and energy companies. APT28 is closely associated with Glavnoye razvedyvatel’noye upravleniye (GRU), the Main Directorate of the General Staff of the Armed Forces of the Russian Federation and is the entity behind the takedowns of Ukraine’s electrical grid in 2015 and 2016 among other high profile hacks and attacks. The timing of these attacks, sometimes executed as phishing attacks, is interesting for it comes after US Cyber Command and possibly the Central Intelligence Agency (CIA) took down Russia’s Internet Research Agency and other actions designed to deter Russian interference in the 2019 mid-term elections in November 2018.
• ““Hurting People  At Scale” – Facebook’s Employees Reckon With The Social Network They’ve Built” – BuzzFeed News. This article documents the dissent and turmoil inside the company about content moderation, which some see the social media giant doing dismally. Some employees and ex-employees are taking issue with how CEO Mark Zuckerberg and his leadership are acting or not to take down extreme and violent content.
• “Big Tech Funds a Think Tank Pushing for Fewer Rules. For Big Tech.” – The New York Times. The Global Antitrust Institute at George Mason University’s Antonin Scalia Law School has been pushing for less regulation of antitrust statutes and regulations, especially in “educating” antitrust officials at conferences. It has also been financially supported by large technology companies which benefit from these policies and has not been transparent about its funding or the extent to which these companies’ positions on antitrust inform its efforts and output. A similar New York Times investigation into other Washington DC think tanks exposed the transactional nature of some of these institutions, donors, and positions.

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