Further Reading, Other Developments, and Coming Events (2 November)

Further Reading

•  “Harris target of more misinformation than Pence, data shows” By Amanda Seitz — Associated Press News. Given the hostile treatment women and minorities in the United States face on social media, it is not a surprise that Senator Kamala Harris (D-CA) has faced a barrage of sexist, racist, and xenophobic invective online.
• “The Untold Technological Revolution Sweeping Through Rural China” By Clive Thompson — The New York Times. In a review of Xiaowei Wang’s new book, “Blockchain Chicken Farm,” one learns that the People’s Republic of China (PRC) is facing a bifurcated society of haves and haves not largely because of the boom in technology just like the United States.
• “DHS plans largest operation to secure U.S. election against hacking” By Joseph Marks — The Washington Post.  Looking to avert a repeat of 2016, the United States’ (U.S.) Department of Homeland Security (DHS) Cybersecurity and Infrastructure Security Agency (CISA) is expecting to be on high alert and will stand its capabilities through Election Day and beyond until winners have been declared. Not only will the agency’s technical capabilities be brought to bear, CISA will also look to liaise with the media regularly to tamp down any panic arising from reports of hacking or interference. And, it is expected that CISA’s relationship building with state and local officials will help speed action on any cyber intelligence the agency pushes out.
• “The Tech Antitrust Problem No One Is Talking About” By Tom Simonite — WIRED. The United States’ (U.S.) four dominant broadband providers Verizon, Comcast, Charter Communications, and AT&T appear to be providing inferior service at higher prices than broadband available in other advanced nations. The pandemic has, of course, focused more people on the lack of highspeed broadband for many Americans. But, the dominance of broadband providers has flown under the radar from an anti-trust and competition perspective. This could change in a Biden Administration.
• “‘Tsunamis of Misinformation’ Overwhelm Local Election Officials” By Kellen Browning and Davey Alba — The New York Times. State and local officials are struggling in terms of human resources and capability to try to address the wave of misinformation and disinformation about the election and procedures being spewed across social media.

Other Developments

• The United States’ (U.S.) Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA), the Federal Bureau of Investigation (FBI), and the Department of Health and Human Services (HHS) released a joint advisory titled “Ransomware Activity Targeting the Healthcare and Public Health Sector.” The advisory “describes the tactics, techniques, and procedures (TTPs) used by cybercriminals against targets in the Healthcare and Public Health (HPH) Sector to infect systems with ransomware, notably Ryuk and Conti, for financial gain.” The agencies’ key findings include:
  • CISA, FBI, and HHS assess malicious cyber actors are targeting the HPH Sector with TrickBot and BazarLoader malware, often leading to ransomware attacks, data theft, and the disruption of healthcare services.
  • These issues will be particularly challenging for organizations within the COVID-19 pandemic; therefore, administrators will need to balance this risk when determining their cybersecurity investments.
• The National Institute of Standards and Technology (NIST) published a companion guidance document to accompany the major update to guidance issued in September that federal agencies and federal contractors must follow. NIST’s Control Baselines for Information Systems and Organizations, NIST Special Publication (SP) 800-53B, a companion publication to SP 800-53 Revision 5, “establishes security and privacy control baselines for federal information systems and organizations and provides tailoring guidance for those baselines.” NIST explained “[i]mplementation of a minimum set of controls selected from NIST SP 800-53, Revision 5 is mandatory to protect federal information and information systems in accordance with the Office of Management and Budget (OMB) Circular A-130 [and the provisions of the Federal Information Security Modernization Act” (FISMA). NIST added while “the privacy control baseline is not mandated by law or OMB A-130,  SP 800-53B—along with other supporting NIST publications—is designed to help organizations identify the security and privacy controls needed to manage risk and to satisfy the security and privacy requirements in FISMA, the Privacy Act of 1974, selected OMB policies, and designated Federal Information Processing Standards (FIPS), among others.”
• The United Kingdom’s (UK) Information Commissioner’s Office (ICO) has released its third significant fine in a few weeks with a £18.4 million fine on Marriott International Inc under the General Data Protection Regulation (GDPR). Because the GDPR came into force in May 2018, only a portion of the data breach dating back to 2014 falls under the EU’s data protection law. Also, the ICO finished its investigation and levied its fine before the UK leaves the European Union (EU). A few weeks ago, the ICO levied a £20 million fine on British Airways “for failing to protect the personal and financial details of more than 400,000 of its customers.” More recently, the ICO completed its investigation into the data brokering practices of Equifax, Transunion, and Experian and found widespread privacy and data protection violations.
  • The ICO originally proposed a £99 million fine on Marriott, but like the British Airways fine, it was dramatically revised downward, in part, because of the pandemic’s effect on the company.
  • In its investigation of Marriott, the ICO found:
    • Marriott estimates that 339 million guest records worldwide were affected following a cyber-attack in 2014 on Starwood Hotels and Resorts Worldwide Inc. The attack, from an unknown source, remained undetected until September 2018, by which time the company had been acquired by Marriott. 
    • The personal data involved differed between individuals but may have included names, email addresses, phone numbers, unencrypted passport numbers, arrival/departure information, guests’ VIP status and loyalty programme membership number.
    • The precise number of people affected is unclear as there may have been multiple records for an individual guest. Seven million guest records related to people in the UK.
    • The ICO’s investigation found that there were failures by Marriott to put appropriate technical or organisational measures in place to protect the personal data being processed on its systems…
    • Because the breach happened before the UK left the EU, the ICO investigated on behalf of all EU authorities as lead supervisory authority under the GDPR. The penalty and action have been approved by the other EU DPAs through the GDPR’s cooperation process.
    • In July 2019, the ICO issued Marriott with a notice of intent to fine. As part of the regulatory process, the ICO considered representations from Marriott, the steps Marriott took to mitigate the effects of the incident and the economic impact of COVID-19 on their business before setting a final penalty.
• Five Democratic Senators wrote the United States’ (U.S.) Department of Homeland Security’s Office of the Inspector General (OIG) requesting an investigation of “warrantless domestic surveillance of phones by Customs and Border Protection (CBP).” Senators Ron Wyden (D-OR), Sherrod Brown (D-OH), Elizabeth Warren (D-MA), Ed Markey (D-MA), and Brian Schatz (D-HI) stated
  • According to public government contracts, CBP has spent nearly half a million dollars for subscriptions to a commercial database provided by a government contractor named Venntel, containing location data collected from millions of Americans’ mobile phones. In an oversight call with Senate staff on September 16, 2020, CBP officials confirmed the agency’s use of this surveillance product, without a court order, in order to track and identify people in the United States.
  • The Senators asserted:
    • CBP is not above the law and it should not be able to buy its way around the Fourth Amendment. Accordingly, we urge you to investigate CBP’s warrantless use of commercial databases containing Americans’ information, including but not limited to Venntel’s location database. We urge you to examine what legal analysis, if any, CBP’s lawyers performed before the agency started to use this surveillance tool. We also request that you determine how CBP was able to begin operational use of Venntel’s location database without the Department of Homeland Security Privacy Office first publishing a Privacy Impact Assessment.
• The United States Patent and Trademark Office (USPTO) published “Public Views on Artificial Intelligence and Intellectual Property Policy” on the basis of two rounds of comments on artificial intelligence (AI), patents, and intellectual property (IP). The USPTO said a key priority “is to maintain United States leadership in innovation, especially in emerging technologies, including AI.” The USPTO stated “[t]o further this goal, the USPTO has been actively engaging with the innovation community and experts in AI to promote the understanding and reliability of intellectual property (IP) rights in relation to AI technology…[and] is working to ensure that appropriate IP incentives are in place to encourage further innovation in and around this critical area.”
  • The USPTO stated “[f]rom the synthesis of the public comments, a number of themes emerged:
    • General Themes
      • Many comments addressed the fact that AI has no universally recognized definition. Due to the wide-ranging definitions of the term, often comments urged caution with respect to specific IP policymaking in relation to AI.
      • The majority of public commenters, while not offering definitions of AI, agreed that the current state of the art is limited to “narrow” AI. Narrow AI systems are those that perform individual tasks in well-defined domains (e.g., image recognition, translation, etc.). The majority viewed the concept of artificial general intelligence (AGI)— intelligence akin to that possessed by humankind and beyond—as merely a theoretical possibility that could arise in a distant future.
      • Based on the majority view that AGI has not yet arrived, the majority of comments suggested that current AI could neither invent nor author without human intervention. The comments suggested that human beings remain integral to the operation of AI, and this is an important consideration in evaluating whether IP law needs modification in view of the current state of AI technology.
      • Across all IP topics, a majority of public commenters expressed a general sense that the existing U.S. intellectual property laws are calibrated correctly to address the evolution of AI. However, commenters appear split as to whether any new classes of IP rights would be beneficial to ensure a more robust IP system.
• New Zealand’s Office of the Privacy Commissioner (OPC) has released more materials in the run up to the 1 December effective date of the Privacy Act 2020:
  • The OPC “has produced step-by-step guidance to help organisations and businesses understand and respond to the new principle 12 obligations,” “a series of controls on the disclosure of personal information to foreign agencies or persons.” This principle will not apply to offshore cloud providers so long as they are not using the personal information of New Zealanders for their own purposes.
  • The OPC also “launched NotifyUs—a new online tool enabling businesses and organisations to easily assess whether a privacy breach is notifiable.” The OPC stated that “[u]nder the Privacy Act 2020—which comes into effect on 1 December—it will be mandatory for organisations to notify OPC if a privacy breach has caused, or is likely to cause, serious harm.” The OPC stated “[b]usinesses and organisations which fail to report a notifiable privacy breach to OPC may receive fines of up to $10,000.”
• The Office of the Privacy Commissioner of Canada (OPC) announced it “has opened investigations into recent cyber security incidents involving attacks on Government of Canada online service accounts.” The Privacy Commissioner initiated the two investigations and “will examine whether the government institutions met their obligations under the Privacy Act, the federal public sector privacy law.” The OPC explained:
  • One investigation will focus on cyberattacks on the GCKey, an electronic credential issued by the government and used by federal institutions to provide individuals and organizations with access to online services. It relates to Shared Services Canada, which issues the GCKey, and federal government departments affected by the attacks on the GCKey.
  • The second investigation relates to cyberattacks on Canada Revenue Agency accounts. The incidents involved “credential stuffing,” where hackers use passwords and usernames collected from previous breaches to take advantage of the fact that many people use the same passwords and usernames for various accounts.
• Microsoft is claiming that it foiled an Iranian cyber-attack on a high-profile cybersecurity conference held in Saudi Arabia. In a blog posting, Microsoft stated “we’re sharing that we have detected and worked to stop a series of cyberattacks from the threat actor Phosphorus masquerading as conference organizers to target more than 100 high-profile individuals.” Microsoft claimed that “Phosphorus, an Iranian actor, has targeted with this scheme potential attendees of the upcoming Munich Security Conference and the Think 20 (T20) Summit in Saudi Arabia.”
  • Microsoft contended:
    • The attackers have been sending possible attendees spoofed invitations by email. The emails use near-perfect English and were sent to former government officials, policy experts, academics and leaders from non-governmental organizations. Phosphorus helped assuage fears of travel during the Covid-19 pandemic by offering remote sessions.
    • We believe Phosphorus is engaging in these attacks for intelligence collection purposes. The attacks were successful in compromising several victims, including former ambassadors and other senior policy experts who help shape global agendas and foreign policies in their respective countries.

Coming Events

• On 10 November, the Senate Commerce, Science, and Transportation Committee will hold a hearing to consider nominations, including Nathan Simington’s to be a Member of the Federal Communications Commission.
• On 17 November, the Senate Judiciary Committee will reportedly hold a hearing with Facebook CEO Mark Zuckerberg and Twitter CEO Jack Dorsey on Section 230 and how their platforms chose to restrict The New York Post article on Hunter Biden.
• On 18 November, the Federal Communications Commission (FCC) will hold an open meeting and has released a tentative agenda:
  • Modernizing the 5.9 GHz Band. The Commission will consider a First Report and Order, Further Notice of Proposed Rulemaking, and Order of Proposed Modification that would adopt rules to repurpose 45 megahertz of spectrum in the 5.850-5.895 GHz band for unlicensed operations, retain 30 megahertz of spectrum in the 5.895-5.925 GHz band for the Intelligent Transportation Systems (ITS) service, and require the transition of the ITS radio service standard from Dedicated Short-Range Communications technology to Cellular Vehicle-to-Everything technology. (ET Docket No. 19-138)
  • Further Streamlining of Satellite Regulations. The Commission will consider a Report and Order that would streamline its satellite licensing rules by creating an optional framework for authorizing space stations and blanket-licensed earth stations through a unified license. (IB Docket No. 18-314)
  • Facilitating Next Generation Fixed-Satellite Services in the 17 GHz Band. The Commission will consider a Notice of Proposed Rulemaking that would propose to add a new allocation in the 17.3-17.8 GHz band for Fixed-Satellite Service space-to-Earth downlinks and to adopt associated technical rules. (IB Docket No. 20-330)
  • Expanding the Contribution Base for Accessible Communications Services. The Commission will consider a Notice of Proposed Rulemaking that would propose expansion of the Telecommunications Relay Services (TRS) Fund contribution base for supporting Video Relay Service (VRS) and Internet Protocol Relay Service (IP Relay) to include intrastate telecommunications revenue, as a way of strengthening the funding base for these forms of TRS and making it more equitable without increasing the size of the Fund itself. (CG Docket Nos. 03-123, 10-51, 12-38)
  • Revising Rules for Resolution of Program Carriage Complaints. The Commission will consider a Report and Order that would modify the Commission’s rules governing the resolution of program carriage disputes between video programming vendors and multichannel video programming distributors. (MB Docket Nos. 20-70, 17-105, 11-131)
  • Enforcement Bureau Action. The Commission will consider an enforcement action.

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