Further Reading, Other Developments, and Coming Events (15 October)

Further Reading

•  “Amazon to escape UK digital services tax that will hit smaller traders” By Mark Sweney — The Guardian. According to media reports, the United Kingdom’s (UK) new digital services tax will not be levied on goods Amazon sells directly to consumers. Rather, the new tax HM Revenue and Customs will be on the revenue from services Amazon and other platforms charge to third-party sellers using Amazon. And, Amazon has made clear it will merely pass along the 2% tax to these entities. This is a strange outcome to a policy ostensibly designed to address the fact that the tach giant paid only £14.4 million in corporation taxes to the UK last year on £13.7 billion in revenue.
• “Norway blames Russia for cyber-attack on parliament” — BBC News. In a statement, the Norwegian government claimed that its Parliament has been breached, and Norway’s Foreign Minister is saying the Russian Federation is the culprit. Last month the government in Oslo said that the email accounts of some government officials had been compromised, but this announcement seems to indicate the breach was far wider than thought last month, or that the government knew and was holding back the information. If true, this is the second such penetration and exfiltration by Russian security services of a European government in the recent past as the German government made the same claims, which lead to the European Union’s first cyber sanctions.
• “Twitter suspends accounts for posing as Black Trump supporters” By Kari Paul — The Guardian and “Fake Twitter accounts posing as Black Trump supporters appear, reach thousands, then vanish” By Craig Timberg and Isaac Stanley-Becker — The Washington Post. As a rule of thumb, I find the Cui Bono helpful. And, so it is with fake Twitter accounts of alleged African Americans who will vote for President Donald Trump. Are these courtesy of the Republican Party and the Trump Campaign? Maybe. They would certainly gain from peeling off African American support for Vice President Joe Biden considering its his strongest constituency as measured by percentage support relative to total population. The Russians? Sure. They also stand to benefit from stirring the cauldron of unease and division in the United States regardless of who wins, and possibly even more so if Biden wins for the U.S. will likely return to its pre-Trump adversarial policy towards the Russian Federation. And, finally how does Twitter benefit from taking down the sort of fake accounts that violate its terms of service when this has not often been its modus operandi? Perhaps to curry favor with a Biden Administration likely to push for changes as to how social media platforms are to be regulated.
• “Backers of Australia’s mandatory news code welcome French ruling on Google” By Amanda Meade — The Guardian. Not surprisingly, the Australian Competition and Consumer Commission (ACCC) was delighted when a French appeals court ruled in favor of France’s competition authority against Google in its challenge of a French law to require social media platforms to pay traditional media for use of their content. The ACCC has been fighting its own battle on this front with its draft code that would require Google and Facebook to do the same down under.
• “Can Tinder be sued for breach of care?” By James Purtrill — ABC News. Given the recent allegations that Tinder knew of sexual assaulters using their app and doing nothing, this piece looks at the liability Tinder may face under Australian law. It is quite likely if sexual assaults related to Tinder indifference or negligence is occurring in other common law countries, then the company may be facing lawsuits there, too.

Other Developments

• The Government Accountability Office (GAO) found that the Federal Aviation Administration (FAA) has not all it can on aviation cybersecurity despite the absence of any successful cyber attacks on a plane’s avionics system. The GAO asserted:
  • FAA has not (1) assessed its oversight program to determine the priority of avionics cybersecurity risks, (2) developed an avionics cybersecurity training program, (3) issued guidance for independent cybersecurity testing, or (4) included periodic testing as part of its monitoring process. Until FAA strengthens its oversight program, based on assessed risks, it may not be able to ensure it is providing sufficient oversight to guard against evolving cybersecurity risks facing avionics systems in commercial airplanes.
  • The GAO allowed:
    • Increasing use of technology and connectivity in avionics has brought new opportunities for persons with malicious intentions to target commercial transport airplanes. The connections among avionics and other systems onboard airplanes and throughout the aviation ecosystem are growing more complex as airplanes become more connected to systems that are essential for flight safety and operations. Airframe manufacturers are deploying software and hardware protections to reduce the risk of the cyber threats currently facing avionics systems.
  • The GAO contended:
    • Further, while FAA has mechanisms for coordinating among its internal components and with other federal agencies and private sector stakeholders to address cybersecurity risks, it has not established avionics cybersecurity risks as a priority. As a result, avionics cybersecurity issues that have been raised within FAA have not been consistently tracked to resolution. Until FAA conducts an overall assessment of the cybersecurity risks to avionics systems and prioritizes coordination efforts based on that assessment, it may not be allocating resources and coordinating on risks as effectively as it could.
  • The GAO made this recommendations:
    • The FAA Administrator should direct the Associate Administrator for Aviation Safety to conduct a risk assessment of avionics systems cybersecurity to identify the relative priority of avionics cybersecurity risks for its oversight program compared to other safety concerns and develop a plan to address those risks. (Recommendation 1)
    • The FAA Administrator should direct the Associate Administrator for Aviation Safety, based on the assessment of avionics cybersecurity risks, to identify staffing and training needs for agency inspectors specific to avionics cybersecurity, and develop and implement appropriate training to address identified needs. (Recommendation 2)
    • The FAA Administrator should direct the Associate Administrator for Aviation Safety, based on the assessment of avionics cybersecurity risks, to develop and implement guidance for avionics cybersecurity testing of new airplane designs that includes independent testing. (Recommendation 3)
    • The FAA Administrator should direct the Associate Administrator for Aviation Safety, based on the assessment of avionics cybersecurity risks, to review and consider revising its policies and procedures for monitoring the effectiveness of avionics cybersecurity controls in the deployed fleet to include developing procedures for safely conducting independent testing. (Recommendation 4)
    • The FAA Administrator should direct the Associate Administrator for Aviation Safety to develop a mechanism to ensure that avionics cybersecurity issues are appropriately tracked and resolved when coordinating among internal stakeholders. (Recommendation 5)
    • The FAA Administrator should direct the Associate Administrator for Aviation Safety, based on the assessment of avionics cybersecurity risks, to review and consider the extent to which oversight resources should be committed to avionics cybersecurity. (Recommendation 6)
• The chairs and ranking members of the House Energy and Commerce Committee and one of its subcommittee wrote the Government Accountability Office (GAO) to “evaluate Department of Health and Human Services’ (HHS) [cyber] incident response capabilities…[and] should include assessing the agency’s forensic threat intelligence data infrastructure used in responding to major or significant incidents involving persistent threats and data breaches.” Chair Frank Pallone, Jr. (D-NJ), Ranking Member Greg Walden (R-OR), and Oversight and Investigations Subcommittee Chair Diana DeGette (D-CO), and Ranking Member Brett Guthrie (R-KY) stated:
  • The Chief Information Security Officer at HHS recently acknowledged that the ongoing COVID-19 public health crisis has placed a new target on HHS, and malicious actors have boosted their efforts to infiltrate the agency and access sensitive data. In addition, it was reported in March 2020 that HHS suffered a cyber-attack on its computer system. According to people familiar with the incident, it was part of a campaign of disruption and disinformation that was aimed at undermining the response to the coronavirus pandemic and may have been the work of a foreign actor. Further, emerging cyber threats, such as the advanced persistent threat groups that exploited COVID-19 in early 2020, underscore the importance of effectively protecting information systems supporting the agency.
  • Given the types of information created, stored, and shared on the information systems owned and operated by HHS, it is important that the agency implement effective incident response handling processes and procedures to address persistent cyber-based threats.
• A federal court denied Epic Games’ request for a preliminary injunction requiring Apple to put Fortnite back into the App Store. The judge assigned the case had signaled this request would likely fail as its request for a temporary restraining order was also rejected. The United States District Court for the Northern District of California summarized Epic’s motion:
  • In this motion for preliminary injunction, Epic Games asks the Court to force Apple to reinstate Fortnite to the Apple App Store, despite its acknowledged breach of its licensing agreements and operating guidelines, and to stop Apple from terminating its affiliates’ access to developer tools for other applications, including Unreal Engine, while Epic Games litigates its claims.
  • The court stated:
    • Epic Games bears the burden in asking for such extraordinary relief. Given the novelty and the magnitude of the issues, as well as the debate in both the academic community and society at large, the Court is unwilling to tilt the playing field in favor of one party or the other with an early ruling of likelihood of success on the merits. Epic Games has strong arguments regarding Apple’s exclusive distribution through the iOS App Store, and the in-app purchase (“IAP”) system through which Apple takes 30% of certain IAP payments. However, given the limited record, Epic Games has not sufficiently addressed Apple’s counter arguments. The equities, addressed in the temporary restraining order, remain the same.
  • The court held:
    • Apple and all persons in active concert or participation with Apple, are preliminarily enjoined from taking adverse action against the Epic Affiliates with respect to restricting, suspending or terminating the Epic Affiliates from the Apple’s Developer Program, on the basis that Epic Games enabled IAP direct processing in Fortnite through means other than the Apple IAP system, or on the basis of the steps Epic Games took to do so. This preliminary injunction shall remain in effect during the pendency of this litigation unless the Epic Affiliates breach: (1) any of their governing agreements with Apple, or (2) the operative App Store guidelines. This preliminary injunction supersedes the prior temporary restraining order.
  • In its complaint, Epic Games is arguing that Apple’s practices violate federal and California antitrust and anti-competition laws. Epic Games argued:
    • This case concerns Apple’s use of a series of anti-competitive restraints and monopolistic practices in markets for (i) the distribution of software applications (“apps”) to users of mobile computing devices like smartphones and tablets, and (ii) the processing of consumers’ payments for digital content used within iOS mobile apps(“in-app content”). Apple imposes unreasonable and unlawful restraints to completely monopolize both markets and prevent software developers from reaching the over one billion users of its mobile devices (e.g., iPhone and iPad) unless they go through a single store controlled by Apple, the App Store, where Apple exacts an oppressive 30% tax on the sale of every app. Apple also requires software developers who wish to sell digital in-app content to those consumers to use a single payment processing option offered by Apple, In-App Purchase, which likewise carries a 30% tax.
    • In contrast, software developers can make their products available to users of an Apple personal computer (e.g., Mac or MacBook) in an open market, through a variety of stores or even through direct downloads from a developer’s website, with a variety of payment options and competitive processing fees that average 3%, a full ten times lower than the exorbitant 30% fees Apple applies to its mobile device in-app purchases.
  • In its late August denial of Epic Games’ request for a temporary restraining order, the court decided the plaintiff does not necessarily have an antitrust case strong enough to succeed on the merits, has not demonstrated irreparable harm because the “current predicament appears to be of its own making,” would unjustifiably be enriched if Fortnite is reinstated to the App Store without having to pay 30% of in app purchases to Apple, and is not operating in a public interest strong enough to overcome the expectation private parties will honor their contracts or resolve disputes through normal means.
• As part of its Digital Modernization initiative, the Department of Defense (DOD) released its Data Strategy which is supposed to change how the DOD and its components collect, process, and use data, which is now being framed as an essential element of 21st Century conflicts. The DOD stated:
  • DOD must accelerate its progress towards becoming a data-centric organization. DOD has lacked the enterprise data management to ensure that trusted, critical data is widely available to or accessible by mission commanders, warfighters, decision-makers, and mission partners in a real- time, useable, secure, and linked manner. This limits data-driven decisions and insights, which hinders the execution of swift and appropriate action.
  • Additionally, DOD software and hardware systems must be designed, procured, tested, upgraded, operated, and sustained with data interoperability as a key requirement. All too often these gaps are bridged with unnecessary human-machine interfaces that introduce complexity, delay, and increased risk of error. This constrains the Department’s ability to operate against threats at machine speed across all domains.
  • DOD also must improve skills in data fields necessary for effective data management. The Department must broaden efforts to assess our current talent, recruit new data experts, and retain our developing force while establishing policies to ensure that data talent is cultivated. We must also spend the time to increase the data acumen resident across the workforce and find optimal ways to promote a culture of data awareness.
  • The DOD explained how it will implement the new strategy:
    • Strengthened data governance will include increased oversight at multiple levels. The Office of the DOD Chief Data Officer (CDO) will govern the Department’s data management efforts and ensure sustained focus by DOD leaders. The DOD Chief Information Officer (DOD CIO) will ensure that data priorities are fully integrated into the DOD Digital Modernization program, ensuring synchronization with DOD’s cloud; AI; Command, Control, and Communications (C3); and cybersecurity efforts. The DOD CIO will also promote compliance with CDO guidance via CIO authorities for managing IT investments, issuing DOD policy, and certifying Service/component budgets.
    • The CDO Council, chaired by the DOD CDO, will serve as the primary venue for collaboration among data officers from across the Department. This body will identify and prioritize data challenges, develop solutions, and oversee policy and data standards of the Department. While working closely with the appropriate governance bodies, members of the CDO Council must also advocate that data considerations be made an integral part of all the Department’s requirements, research, procurement, budgeting, and manpower decisions.
  • The DOD concluded:
    • Data underpins digital modernization and is increasingly the fuel of every DOD process, algorithm, and weapon system. The DOD Data Strategy describes an ambitious approach for transforming the Department into a data-driven organization. This requires strong and effective data management coupled with close partnerships with users, particularly warfighters. Every leader must treat data as a weapon system, stewarding data throughout its lifecycle and ensuring it is made available to others. The Department must provide its personnel with the modern data skills and tools to preserve U.S. military advantage in day-to-day competition and ensure that they can prevail in conflict.
  • In its draft Digital Modernization Strategy, the DOD stated:
    • The DOD Digital Modernization Strategy, which also serves as the Department’s Information Resource Management (IRM) Strategic Plan, presents Information Technology (IT)-related modernization goals and objectives that provide essential support for the three lines of effort in the National Defense Strategy (NDS), and the supporting National Defense Business Operations Plan (NDBOP). It presents the DOD CIO’s vision for achieving the Department’s goals and creating “a more secure, coordinated, seamless, transparent, and cost-effective IT architecture that transforms data into actionable information and ensures dependable mission execution in the face of a persistent cyber threat.”

Coming Events

• The European Union Agency for Cybersecurity (ENISA), Europol’s European Cybercrime Centre (EC3) and the Computer Emergency Response Team for the EU Institutions, Bodies and Agencies (CERT-EU) will hold the 4th annual IoT Security Conference series “to raise awareness on the security challenges facing the Internet of Things (IoT) ecosystem across the European Union:”
  • Supply Chain for IoT – 21 October at 15:00 to 16:30 CET
• The Federal Communications Commission (FCC) will hold an open commission meeting on 27 October, and the agency has released a tentative agenda:
  • Restoring Internet Freedom Order Remand – The Commission will consider an Order on Remand that would respond to the remand from the U.S. Court of Appeals for the D.C. Circuit and conclude that the Restoring Internet Freedom Order promotes public safety, facilitates broadband infrastructure deployment, and allows the Commission to continue to provide Lifeline support for broadband Internet access service. (WC Docket Nos. 17-108, 17-287, 11- 42)
  • Establishing a 5G Fund for Rural America – The Commission will consider a Report and Order that would establish the 5G Fund for Rural America to ensure that all Americans have access to the next generation of wireless connectivity. (GN Docket No. 20-32)
  • Increasing Unlicensed Wireless Opportunities in TV White Spaces – The Commission will consider a Report and Order that would increase opportunities for unlicensed white space devices to operate on broadcast television channels 2-35 and expand wireless broadband connectivity in rural and underserved areas. (ET Docket No. 20-36)
  • Streamlining State and Local Approval of Certain Wireless Structure Modifications – The Commission will consider a Report and Order that would further accelerate the deployment of 5G by providing that modifications to existing towers involving limited ground excavation or deployment would be subject to streamlined state and local review pursuant to section 6409(a) of the Spectrum Act of 2012. (WT Docket No. 19-250; RM-11849)
  • Revitalizing AM Radio Service with All-Digital Broadcast Option – The Commission will consider a Report and Order that would authorize AM stations to transition to an all-digital signal on a voluntary basis and would also adopt technical specifications for such stations. (MB Docket Nos. 13-249, 19-311)
  • Expanding Audio Description of Video Content to More TV Markets – The Commission will consider a Report and Order that would expand audio description requirements to 40 additional television markets over the next four years in order to increase the amount of video programming that is accessible to blind and visually impaired Americans. (MB Docket No. 11-43)
  • Modernizing Unbundling and Resale Requirements – The Commission will consider a Report and Order to modernize the Commission’s unbundling and resale regulations, eliminating requirements where they stifle broadband deployment and the transition to next- generation networks, but preserving them where they are still necessary to promote robust intermodal competition. (WC Docket No. 19-308)
  • Enforcement Bureau Action – The Commission will consider an enforcement action.
• On October 29, the Federal Trade Commission (FTC) will hold a seminar titled “Green Lights & Red Flags: FTC Rules of the Road for Business workshop” that “will bring together Ohio business owners and marketing executives with national and state legal experts to provide practical insights to business and legal professionals about how established consumer protection principles apply in today’s fast-paced marketplace.”
• The Senate Commerce, Science, and Transportation Committee will reportedly hold a hearing on 29 October regarding 47 U.S.C. 230 with testimony from:
  • Jack Dorsey, Chief Executive Officer of Twitter;
  • Sundar Pichai, Chief Executive Officer of Alphabet Inc. and its subsidiary, Google; and 
  • Mark Zuckerberg, Chief Executive Officer of Facebook.

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