Further Reading, Other Developments, and Coming Events (19 January 2021)

Further Reading

• “Hong Kong telecoms provider blocks website for first time, citing security law” — Reuters; “A Hong Kong Website Gets Blocked, Raising Censorship Fears” By Paul Mozur and Aaron Krolik — The New York Times. The Hong Kong Broadband Network (HKBN) blocked access to a website about the 2019 protests against the People’s Republic of China (PRC) (called HKChronicles) under a recently enacted security law critics had warned would lead to exactly this sort of outcome. Allegedly, the Hong Kong police had invoked the National Security Law for the first time, and other telecommunications companies have followed suit.
• “Biden to counter China tech by urging investment in US: adviser” By Yifan Yu — Nikkei Asia. President-elect Joe Biden’s head of the National Economic Council said at a public event that the Biden Administration would focus less on tariffs and other similar instruments to counter the People’s Republic of China (PRC). Instead, the incoming President would try to foster investment in United States companies and technologies to fend off the PRC’s growing strength in a number of crucial fields. Also, a Biden Administration would work more with traditional U.S. allies to contest policies from Beijing.
• “Revealed: walkie-talkie app Zello hosted far-right groups who stormed Capitol” By Micah Loewinger and Hampton Stall — The Guardian. Some of the rioters and insurrectionists whop attacked the United States Capitol on 6 January were using another, lesser known communications app, Zello, to coordinate their actions. The app has since taken down a number of right-wing and extremist groups that have flourished for months if not years on the platform. It remains to be seen how smaller platforms will be scrutinized under a Biden Presidency. Zello has reportedly been aware that these groups have been using their platform and opted not to police their conduct.
• “They Used to Post Selfies. Now They’re Trying to Reverse the Election.” By Stuart A. Thompson and Charlie Warzel — The New York Times. The three people who amassed considerable extremist followings seem each to be part believer and part opportunist. A fascinating series of profiles about the three.
• “Telegram tries, and fails, to remove extremist content” By Mark Scott — Politico. Platforms other than Facebook and Twiiter are struggling to moderate right wing and extremist content that violates their policies and terms of service.

Other Developments

• The Biden-Harris transition team announced that a statutorily established science advisor will now be a member of the Cabinet and named its nominee for this and other positions. The Office of Science and Technology Policy (OSTP) was created by executive order in the Ford Administration and then codified by Congress. However, the OSTP Director has not been a member of the Cabinet alongside the Senate-confirmed Secretaries and others. President-elect Joe Biden has decided to elevate the OSTP Director to the Cabinet, likely in order to signal the importance of science and technology in his Administration. The current OSTP has exercised unusual influence in the Trump Administration under the helm of OSTP Associate Director Michael Kratsios and shaped policy in a number of realms like artificial intelligence, national security, and others.
  • In the press release, the transition team explained:
    • Dr. Eric Lander will be nominated as Director of the OSTP and serve as the Presidential Science Advisor. The president-elect is elevating the role of science within the White House, including by designating the Presidential Science Advisor as a member of the Cabinet for the first time in history. One of the country’s leading scientists, Dr. Lander was a principal leader of the Human Genome Project and has been a pioneer in the field of genomic medicine. He is the founding director of the Broad Institute of MIT and Harvard, one of the nation’s leading research institutes. During the Obama-Biden administration, he served as external Co-Chair of the President’s Council of Advisors on Science and Technology. Dr. Lander will be the first life scientist to serve as Presidential Science Advisor.
    • Dr. Alondra Nelson will serve as OSTP Deputy Director for Science and Society. A distinguished scholar of science, technology, social inequality, and race, Dr. Nelson is president of the Social Science Research Council, an independent, nonprofit organization linking social science research to practice and policy. She is also a professor at the Institute for Advanced Study, one of the nation’s most distinguished research institutes, located in Princeton, NJ.
    • Dr. Frances H. Arnold and Dr. Maria Zuber will serve as the external Co-Chairs of the President’s Council of Advisors on Science and Technology (PCAST). An expert in protein engineering, Dr. Arnold is the first American woman to win the Nobel Prize in Chemistry. Dr. Zuber, an expert in geophysics and planetary science, is the first woman to lead a NASA spacecraft mission and has chaired the National Science Board. They are the first women to serve as co-chairs of PCAST.
    • Dr. Francis Collins will continue serving in his role as Director of the National Institutes of Health.
    • Kei Koizumi will serve as OSTP Chief of Staff and is one of the nation’s leading experts on the federal science budget.
    • Narda Jones, who will serve as OSTP Legislative Affairs Director, was Senior Technology Policy Advisor and Counsel for the Democratic staff of the U.S. Senate Committee on Commerce, Science and Transportation.
• The United States (U.S.) Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) issued a report on supply chain security by a public-private sector advisory body, which represents one of the lines of effort of the U.S. government to better secure technology and electronics that emanate from the People’s Republic of China (PRC). CISA’s National Risk Management Center co-chairs the Information and Communications Technology (ICT) Supply Chain Risk Management (SCRM) Task Force along with the Information Technology Sector Coordinating Council and the Communications Sector Coordinating Council. The ICT SCRM published its Year 2 Report that “builds upon” its Interim Report and asserted:
  • Over the past year, the Task Force has expanded upon its first-year progress to advance meaningful partnership around supply chain risk management. Specifically, the Task Force:
    • Developed reference material to support overcoming legal obstacles to information sharing
    • Updated the Threat Evaluation Report, which evaluates threats to suppliers, with additional scenarios and mitigation measures for the corresponding threat scenarios
    • Produced a report and case studies providing in -depth descriptions of control categories and information regarding when and how to use a Qualified List to manage supply chain risks
    • Developed a template for SCRM compliance assessments and internal evaluations of alignment to industry standards
    • Analyzed the current and potential impacts from the COVID-19 pandemic, and developed a system map to visualize ICT supply chain routes and identify chokepoints
    • Surveyed supply chain related programs and initiatives that provide opportunities for potential TaskForce engagement
  • Congress established an entity to address and help police supply chain risk at the end of 2018 in the “Strengthening and Enhancing Cyber-capabilities by Utilizing Risk Exposure Technology Act” (SECURE Act) (P.L. 115-390). The Federal Acquisition Security Council (FASC) has a number of responsibilities, including:
    • developing an information sharing process for agencies to circulate decisions throughout the federal government made to exclude entities determined to be IT supply chain risks
    • establishing a process by which entities determined to be IT supply chain risks may be excluded from procurement government-wide (exclusion orders) or suspect IT must be removed from government systems (removal orders)
    • creating an exception process under which IT from an entity subject to a removal or exclusion order may be used if warranted by national interest or national security
    • issuing recommendations for agencies on excluding entities and IT from the IT supply chain and “consent for a contractor to subcontract” and mitigation steps entities would need to take in order for the Council to rescind a removal or exclusion order
    • In September 2020, the FASC released an interim regulation that took effect upon being published that “implement[s] the requirements of the laws that govern the operation of the FASC, the sharing of supply chain risk information, and the exercise of its authorities to recommend issuance of removal and exclusion orders to address supply chain security risks…”
• The Australian government has released its bill to remake how platforms like Facebook, Google, and others may use the content of new media, including provision for payment. The “Treasury Laws Amendment (News Media and Digital Platforms Mandatory Bargaining Code) Bill 2020” “establishes a mandatory code of conduct to help support the sustainability of the Australian news media sector by addressing bargaining power imbalances between digital platforms and Australian news businesses.” The agency charged with developing legislation, the Australian Competition and Consumer Commission (ACCC), has tussled with Google in particular over what this law would look like with the technology giant threatening to withdraw from Australia altogether. The ACCC had determined in its July 2019 Digital Platform Inquiry:
  • that there is a bargaining power imbalance between digital platforms and news media businesses so that news media businesses are not able to negotiate for a share of the revenue generated by the digital platforms and to which the news content created by the news media businesses contributes. Government intervention is necessary because of the public benefit provided by the production and dissemination of news, and the importance of a strong independent media in a well-functioning democracy.
  • In an Explanatory Memorandum, it is explained:
    • The Bill establishes a mandatory code of conduct to address bargaining power imbalances between digital platform services and Australian news businesses…by setting out six main elements:
      • bargaining–which require the responsible digital platform corporations and registered news business corporations that have indicated an intention to bargain, to do so in good faith;
      • compulsory arbitration–where parties cannot come to a negotiated agreement about remuneration relating to the making available of covered news content on designated digital platform services, an arbitral panel will select between two final offers made by the bargaining parties;
      • general requirements –which, among other things, require responsible digital platform corporations to provide registered news business corporations with advance notification of planned changes to an algorithm or internal practice that will have a significant effect on covered news content;
      • non-differentiation requirements –responsible digital platform corporations must not differentiate between the news businesses participating in the Code, or between participants and non-participants, because of matters that arise in relation to their participation or non-participation in the Code;
      • contracting out–the Bill recognises that a digital platform corporation may reach a commercial bargain with a news business outside the Code about remuneration or other matters. It provides that parties who notify the ACCC of such agreements would not need to comply with the general requirements, bargaining and compulsory arbitration rules (as set out in the agreement); and
      • standard offers –digital platform corporations may make standard offers to news businesses, which are intended to reduce the time and cost associated with negotiations, particularly for smaller news businesses. If the parties notify the ACCC of an agreed standard offer, those parties do not need to comply with bargaining and compulsory arbitration (as set out in the agreement);
• The Federal Trade Commission (FTC) has reached a settlement with an mobile advertising company over “allegations that it failed to provide in-game rewards users were promised for completing advertising offers.” The FTC unanimously agreed to the proposed settlement with Tapjoy, Inc. that bars the company “from misleading users about the rewards they can earn and must monitor its third-party advertiser partners to ensure they do what is necessary to enable Tapjoy to deliver promised rewards to consumers.” The FTC drafted a 20 year settlement that will obligate Tapjoy, Inc. to refrain from certain practices that violate the FTC Act; in this case that includes not making false claims about the rewards people can get if they take or do not take some action in an online game. Tapjoy, Inc. will also need to submit compliance reports, keep records, and make materials available to the FTC upon demand. Any failure to meet the terms of the settlement could prompt the FTC to seek redress in federal court, including more than $43,000 per violation.
  • In the complaint, the FTC outlined Tapjoy, Inc.’s illegal conduct:
    • Tapjoy operates an advertising platform within mobile gaming applications (“apps”). On the platform, Tapjoy promotes offers of in-app rewards (e.g., virtual currency) to consumers who complete an action, such as taking a survey or otherwise engaging with third-party advertising. Often, these consumers must divulge personal information or spend money. In many instances, Tapjoy never issues the promised reward to consumers who complete an action as instructed, or only issues the currency after a substantial delay. Consumers who attempt to contact Tapjoy to complain about missing rewards find it difficult to do so, and many consumers who complete an action as instructed and are able to submit a complaint nevertheless do not receive the promised reward.  Tapjoy has received hundreds of thousands of complaints concerning its failure to issue promised rewards to consumers. Tapjoy nevertheless has withheld rewards from consumers who have completed all required actions.
  • In its press release, the FTC highlighted the salient terms of the settlement:
    • As part of the proposed settlement, Tapjoy is prohibited from misrepresenting the rewards it offers consumers and the terms under which they are offered. In addition, the company must clearly and conspicuously display the terms under which consumers can receive such rewards and must specify that the third-party advertisers it works with determine if a reward should be issued. Tapjoy also will be required to monitor its advertisers to ensure they are following through on promised rewards, investigate complaints from consumers who say they did not receive their rewards, and discipline advertisers who deceive consumers.
  • FTC Commissioners Rohit Chopra and Rebecca Kelly Slaughter issued a joint statement, and in their summary section, they asserted:
    • The explosive growth of mobile gaming has led to mounting concerns about harmful practices, including unlawful surveillance, dark patterns, and facilitation of fraud.
    • Tapjoy’s failure to properly police its mobile gaming advertising platform cheated developers and gamers out of promised compensation and rewards.
    • The Commission must closely scrutinize today’s gaming gatekeepers, including app stores and advertising middlemen, to prevent harm to developers and gamers.
  • On the last point, Chopra and Kelly Slaughter argued:
    • We should all be concerned that gatekeepers can harm developers and squelch innovation. The clearest example is rent extraction: Apple and Google charge mobile app developers on their platforms up to 30 percent of sales, and even bar developers from trying to avoid this tax through offering alternative payment systems. While larger gaming companies are pursuing legal action against these practices, developers and small businesses risk severe retaliation for speaking up, including outright suspension from app stores – an effective death sentence.
    • This market structure also has cascading effects on gamers and consumers. Under heavy taxation by Apple and Google, developers have been forced to adopt alternative monetization models that rely on surveillance, manipulation, and other harmful practices.
• The United Kingdom’s (UK) High Court ruled against the use of general warrants for online surveillance by the Uk’s security agencies (MI5, MI6, and the Government Communication Headquarters (GCHQ)). Privacy International (PI), a British advocacy organization, had brought the suit after Edward Snowden revealed the scope of the United States National Security Agency’s (NSA) surveillance activities, including bulk collection of information, a significant portion of which required hacking. PI sued in a special tribunal formed to resolve claims against British security agencies where the government asserted general warrants would suffice for purposes of mass hacking. PI disagreed and argued this was counter to 250 years of established law in the UK that warrants must be based on reasonable suspicion, specific in what is being sought, and proportionate. The High Court agreed with PI.
  • In its statement after the ruling, PI asserted:
    • Because general warrants are by definition not targeted (and could therefore apply to hundreds, thousands or even millions of people) they violate individuals’ right not to not have their property searched without lawful authority, and are therefore illegal.
    • The adaptation of these 250-year-old principles to modern government hacking and property interference is of great significance. The Court signals that fundamental constitutional principles still need to be applied in the context of surveillance and that the government cannot circumvent traditional protections afforded by the common law.
• In Indiana, the attorney general is calling on the governor to “to adopt a safe harbor rule I proposed that would incentivize companies to take strong data protection measures, which will reduce the scale and frequency of cyberattacks in Indiana.” Attorney General Curtis Hill urged Governor Eric J. Holcomb to allow a change in the state’s data security regulations to be made effective.
  • The proposed rule provides:
    • Procedures adopted under IC 24-4.9-3-3.5(c) are presumed reasonable if the procedures comply with this section, including one (1) of the following applicable standards:
      • (1) A covered entity implements and maintains a cybersecurity program that complies with the National Institute of Standards and Technology (NIST) cybersecurity framework and follows the most recent version of one (1) of the following standards:
        • (A) NIST Special Publication 800-171.
        • (B) NIST SP 800-53.
        • (C) The Federal Risk and Authorization Management Program (FedRAMP) security assessment framework.
        • (D) International Organization for Standardization/International Electrotechnical Commission 27000 family – information security management systems.
      • (2) A covered entity is regulated by the federal or state government and complies with one (1) of the following standards as it applies to the covered entity:
        • (A) The federal USA Patriot Act (P.L. 107-56).
        • (B) Executive Order 13224.
        • (C) The federal Driver’s Privacy Protection Act (18 U.S.C. 2721 et seq.).
        • (D) The federal Fair Credit Reporting Act (15 U.S.C. 1681 et seq.).
        • (E) The federal Health Insurance Portability and Accountability Act (HIPAA) (P.L. 104-191).
      • (3) A covered entity complies with the current version of the payment card industry data security standard in place at the time of the breach of security of data, as published by the Payment Card Industry Security Standard Council.
    • The regulations further provide that if a data base owner can show “its data security plan was reasonably designed, implemented, and executed to prevent the breach of security of data” then it “will not be subject to a civil action from the office of the attorney general arising from the breach of security of data.”
• The Tech Transparency Project (TTP) is claiming that Apple “has removed apps in China at the government’s request” the majority of which “involve activities like illegal gambling and porn.” However, TTP is asserting that its analysis “suggests Apple is proactively blocking scores of other apps that are politically sensitive for Beijing.”

Coming Events

• On 19 January, the Senate Intelligence Committee will hold a hearing on the nomination of Avril Haines to be the Director of National Intelligence.
• The Senate Homeland Security and Governmental Affairs Committee will hold a hearing on the nomination of Alejandro N. Mayorkas to be Secretary of Homeland Security on 19 January.
• On 19 January, the Senate Armed Services Committee will hold a hearing on former General Lloyd Austin III to be Secretary of Defense.
• On 27 July, the Federal Trade Commission (FTC) will hold PrivacyCon 2021.

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