Further Reading, Other Developments, and Coming Events (11 November)

Further Reading

• “ICE, IRS Explored Using Hacking Tools, New Documents Show” By Joseph Cox — Vice. Federal agencies other than the Federal Bureau of Investigation (FBI) and the Intelligence Community (IC) appear to be interesting in utilizing some of the capabilities offered by the private sector to access devices or networks in the name of investigating cases.
• “China’s tech industry relieved by Biden win – but not relaxed” By Josh Horwitz and Yingzhi Yang — Reuters. While a Biden Administration will almost certainly lower the temperature between Beijing and Washington, the People’s Republic of China is intent on addressing the pressure points used by the Trump Administration to inflict pain on its technology industry.
• “Trump Broke the Internet. Can Joe Biden Fix It?” By Gilad Edelman — WIRED. This piece provides a view of the waterfront in technology policy under a Biden Administration.
• “YouTube is awash with election misinformation — and it isn’t taking it down” By Rebecca Heilweil — Recode. For unexplained reasons, YouTube seems to have avoided the scrutiny facing Facebook and Twitter on their content moderation policies. Whether the lack of scrutiny is a reason is not clear, but the Google owned platform had much more election-related misinformation than the other social media platforms.
• “Frustrated by internet service providers, cities and schools push for more data” By Cyrus Farivar — NBC News. Internet service providers are not helping cities and states identify families eligible for low-cost internet to help children attend school virtually. They have claimed these data are proprietary, so jurisdictions have gotten creative about identifying such families.

Other Developments

• The Consumer Product Safety Commission’s (CPSC) Office of the Inspector General (OIG) released its annual Federal Information Security Modernization Act (FISMA) audit and found “that although management continues to make progress in implementing the FISMA requirements much work remains to be done.” More particularly, it was “determined that the CPSC has not implemented an effective information security program and practices in accordance with FISMA requirements.” The OIG asserted:
  • The CPSC information security program was not effective because the CPSC has not developed a holistic formal approach to manage information security risks or to effectively utilize information security resources to address previously identified information security deficiencies. Although the CPSC has begun to develop an Enterprise Risk Management (ERM) program to guide risk management practices at the CPSC, explicit guidance and processes to address information security risks and integrate those risks into the broader agency-wide ERM program has not been developed.
  • In addition, the CPSC has not leveraged the relevant information security risk management guidance prescribed by NIST to develop an approach to manage information security risk.
  • Further, as asserted by CPSC personnel, the CPSC has limited resources to operate the information security program and to address the extensive FISMA requirements and related complex cybersecurity challenges.
  • Therefore, the CPSC has not dedicated the resources necessary to fully address these challenges and requirements. The CPSC began addressing previously identified information security deficiencies but was not able to address all deficiencies in FY 2020.
• The United States (U.S.) Department of Justice (DOJ) announced the seizure of 27 websites allegedly used by Iran’s Islamic Revolutionary Guard Corps (IRGC) “to further a global covert influence campaign…in violation of U.S. sanctions targeting both the Government of Iran and the IRGC.” The DOJ contended:
  • Four of the domains purported to be genuine news outlets but were actually controlled by the IRGC and targeted audiences in the United States, to covertly influence United States policy and public opinion, in violation of the Foreign Agents Registration Act (FARA). The remainder targeted audiences in other parts of the world.  This seizure warrant follows an earlier seizure of 92 domains used by the IRGC for similar purposes.
• The United Nations (UN) Special Rapporteur on the right to privacy Joseph Cannataci issued his annual report that “constitutes  a  preliminary  assessment  as  the  evidence  base required to reach definitive conclusions on whether privacy-intrusive, anti-COVID-19 measures are necessary and proportionate in a democratic society is not yet available.” Cannataci added “[a] more definitive report is planned for mid-2021, when 16 months of evidence will be available to allow a more accurate assessment.” He “addresse[d]  two  particular  aspects  of  the impact of COVID-19 on the right to privacy: data protection and surveillance.” The Special Rapporteur noted:
  • While the COVID-19 pandemic has generated much debate about the value of contact tracing and reliance upon technology that track citizens and those they encounter, the use of information and technology is not new in managing public health emergencies. What is concerning in some States are reports of how technology is being used and the degree of intrusion and control being exerted over citizens –possibly to little public health effect.
  • The Special Rapporteur concluded:
    • It is far too early to assess definitively whether some COVID-19-related measures might be unnecessary or disproportionate. The Special Rapporteur will continue to monitor the impact of surveillance in epidemiology on the right to privacy and report to the General Assembly in 2021. The main privacy risk lies in the use of non-consensual methods, such as those outlined in the section on hybrid systems of surveillance, which could result in function creep and be used for other purposes that may be privacy intrusive.
    • Intensive and omnipresent technological surveillance is not the panacea for pandemic situations such as COVID-19. This has been especially driven home by those countries in which the use of conventional contact-tracing methods, without recourse to smartphone applications, geolocation or other technologies, has proven to be most effective in countering the spread of COVID-19.
    • If a State decides that technological surveillance is necessary as a response to the global COVID-19 pandemic, it must make sure that, after proving both the necessity and proportionality of the specific measure, it has a law that explicitly provides for such surveillance measures (as in the example of Israel).
    • A State wishing to introduce a surveillance measure for COVID-19 purposes, should not be able to rely on a generic provision in law, such as one stating that the head of the public health authority may “order such other action be taken as he [or she] may consider appropriate”. That does not provide explicit and specific safeguards which are made mandatory both under the provisions of Convention 108 and Convention 108+, and based on the jurisprudence of the European Court of Human Rights. Indeed, if the safeguard is not spelled out in sufficient detail, it cannot be considered an adequate safeguard.
• The University of Toronto’s Citizen Lab issued its submission to the Government of Canada’s “public consultation on the renewal of its Responsible Business Conduct (RBC) strategy, which is intended to provide guidance to the Government of Canada and Canadian companies active abroad with respect to their business activities.” Citizen Lab addressed “Canadian technology companies and the threat they pose to human rights abroad” and noted two of its reports on Canadian companies whose technologies were used to violate human rights:
  • In 2018, the Citizen Lab released a report documenting Netsweeper installations on public IP networks in ten countries that each presented widespread human rights concerns. This research revealed that Netsweeper technology was used to block: (1) political content sites, including websites linked to political groups, opposition groups, local and foreign news, and regional human rights issues in Bahrain, Kuwait, Yemen, and UAE; (2) LGBTQ content as a result of Netsweeper’s pre-defined ‘Alternative Lifestyles’ content category, as well as Google searches for keywords relating to LGBTQ content (e.g., the words “gay” or “lesbian”) in the UAE, Bahrain, and Yemen; (3) non-pornographic websites under the mis-categorization of sites like the World Health Organization and the Center for Health and Gender Equity as “pornography”; (4) access to news reporting on the Rohingya refugee crisis and violence against Muslims from multiple news outlets for users in India; (5) Blogspot-hosted websites in Kuwait by categorizing them as “viruses” as well as a range of political content from local and foreign news and a website that monitors human rights issues in the region; and (6) websites like Date.com, Gay.com (the Los Angeles LGBT Center), Feminist.org, and others through categorizing them as “web proxies.” 
  • In 2018, the Citizen Lab released a report documenting the use of Sandvine/Procera devices to redirect users in Turkey and Syria to spyware, as well as the use of such devices to hijack the Internet users’ connections in Egypt, redirecting them to revenue-generating content. These examples highlight some of the ways in which this technology can be used for malicious purposes. The report revealed how Citizen Lab researchers identified a series of devices on the networks of Türk Telekom—a large and previously state-owned ISP in Turkey—being used to redirect requests from users in Turkey and Syria who attempted to download certain common Windows applications like antivirus software and web browsers. Through the use of Sandvine/Procera technology, these users were instead redirected to versions of those applications that contained hidden malware. 
  • Citizen Lab made a number of recommendations:
    • Reform Canadian export law:  
      • Clarify that all Canadian exports are subject to the mandatory analysis set out in section 7.3(1) and section 7.4 of the Export and Import Permits Act (EIPA). 
      • Amend section 3(1) the EIPA such that the human rights risks of an exported good or technology provide an explicit basis for export control.
      • Amend the EIPA to include a ‘catch-all’ provision that subjects cyber-surveillance technology to export control, even if not listed on the Export Control List, when there is evidence that the end-use may be connected with internal repression and/or the commission of serious violations of international human rights or international humanitarian law. 
    • Implement mandatory human rights due diligence legislation:
      • Similar to the French duty of vigilance law, impose a human rights due diligence requirement on businesses such that they are required to perform human rights risk assessments, develop mitigation strategies, implement an alert system, and develop a monitoring and public reporting scheme. 
      • Ensure that the mandatory human rights due diligence legislation provides a statutory mechanism for liability where a company fails to conform with the requirements under the law. 
    • Expand and strengthen the Canadian Ombudsperson for Responsible Enterprise (CORE): 
      • Expand the CORE’s mandate to cover technology sector businesses operating abroad.
      • Expand the CORE’s investigatory mandate to include the power to compel companies and executives to produce testimony, documents, and other information for the purposes of joint and independent fact-finding.
      • Strengthen the CORE’s powers to hold companies to account for human rights violations abroad, including the power to impose fines and penalties and to impose mandatory orders.
      • Expand the CORE’s mandate to assist victims to obtain legal redress for human rights abuses. This could include the CORE helping enforce mandatory human rights due diligence requirements, imposing penalties and/or additional statutory mechanisms for redress when requirements are violated.
      • Increase the CORE’s budgetary allocations to ensure that it can carry out its mandate.
• A week before the United States’ (U.S.) election, the White House’s Office of Science and Technology Policy (OSTP) issued a report titled “Advancing America’s Global Leadership in Science and Technology: Trump Administration Highlights from the Trump Administration’s First Term: 2017-2020,” that highlights the Administration’s purported achievements. OSTP claimed:
  • Over the past four years, President Trump and the entire Administration have taken decisive action to help the Federal Government do its part in advancing America’s global science and technology (S&T) preeminence. The policies enacted and investments made by the Administration have equipped researchers, health professionals, and many others with the tools to tackle today’s challenges, such as the COVID-19 pandemic, and have prepared the Nation for whatever the future holds.

Coming Events

• 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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