Further Reading, Other Developments, and Coming Events (17 February 2021)

Further Reading

• “Sheryl Sandberg Downplayed Facebook’s Role In The Capitol Hill Siege—Justice Department Files Tell A Very Different Story” By Thomas Brewster — Forbes. According to charging documents, Facebook, and not Parler, was the app of choice the insurrectionists used in planning to storm the United States Capitol. And, of course, Facebook initially claimed this was planned on other platforms and then pivoted to their cooperation with law enforcement in preserving incriminating evidence.
• “Despite Scanning Millions of Faces, Feds Caught Zero Imposters at Airports Last Year” By Dave Gershgorn — OneZero. The Department of Homeland Security’s Customs and Border Patrol’s use of facial recognition technology continues to be a mess. When contractors are exposing the personal data of thousands of people, there are very few documented instances of the technology catching imposters at airports and points of entry among the millions who have entered the United States. Nonetheless, the agency claims the technology is vital and useful.
• “There Are Spying Eyes Everywhere—and Now They Share a Brain” By Arthur Holland Michel — WIRED. A sobering look at how “multi-intelligence fusion” (i.e., bringing together many streams of information) is remaking policing, governing, and waging war.
• “In China, an App Offered Space for Debate. Then the Censors Came.” By Amy Chang Chien and Amy Qin — The New York Times. To no great surprise, the People’s Republic of China (PRC) slammed shut the brief window when some PRC residents could use Clubhouse, the new messaging app, to talk with other people around the world, notably in Taiwan and Hong Kong.
• “Where Do Vaccine Doses Go, and Who Gets Them? The Algorithms Decide” By Natasha Singer — The New York Times. I would think the use of algorithms and automated decision making in the United States to divvy up COVID vaccines will provide a potent case study on the good, the bad, and the incomprehensible of current efforts.

Other Developments

• The new leadership at the United States (U.S.) Department of Justice (DOJ) was withdrawn from the litigation brought by their predecessors against California for its net neutrality law. This case was brought after California and other states enacted such laws after the Trump era Federal Communications Commission (FCC) repealed the Obama era FCC’s net neutrality rules. In its motion, the DOJ stated it “hereby gives notice of its voluntary dismissal of this case,” which the court soon thereafter granted. However, there is another lawsuit being waged against the California law by a number of cable trade associations, including the American Cable Association, CTIA – The Wireless Association, NCTA – The Internet & Television Association, And USTelecom – The Broadband Association.
  • Acting FCC Chair Jessica Rosenworcel asserted in her press release:
    • I am pleased that the Department of Justice has withdrawn this lawsuit.  When the FCC, over my objection, rolled back its net neutrality policies, states like California sought to fill the void with their own laws.  By taking this step, Washington is listening to the American people, who overwhelmingly support an open internet, and is charting a course to once again make net neutrality the law of the land.
  • In 2014, the United States Court of Appeals for the District Of Columbia Circuit (D.C. Circuit) struck down a 2010 FCC net neutrality order in Verizon v. FCC, but the court did suggest a path forward. The court held the FCC “reasonably interpreted section 706 to empower it to promulgate rules governing broadband providers’ treatment of Internet traffic, and its justification for the specific rules at issue here—that they will preserve and facilitate the “virtuous circle” of innovation that has driven the explosive growth of the Internet—is reasonable and supported by substantial evidence.” The court added that “even though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates…[and] [g]iven that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such.” However, in 2016, the same court upheld the 2015 net neutrality regulations in U.S. Telecom Association v. FCC, and this court is hearing a challenge to the FCC’s 2017 order in Mozilla v. FCC.
  • In the fall of 2019, In a highly anticipated decision, the D.C. Circuit upheld most of the FCC’s repeal of the its earlier net neutrality rule (i.e. In re Restoring Internet Freedom, 33 FCC Rcd. 311 (2018)). However, the D.C. Circuit declined to accept the FCC’s attempt to preempt all contrary state laws and struck down this part of the FCC’s rulemaking. Consequently, states and local jurisdictions may now be free to enact regulations of internet services along the lines of the FCC’s now repealed Open Internet Order.
  • In September 2018, then-Governor Jerry Brown signed into law SB 822, summarized thusly:
    • This bill would enact the California Internet Consumer Protection and Net Neutrality Act of 2018. This act would prohibit fixed and mobile Internet service providers, as defined, that provide broadband Internet access service, as defined, from engaging in specified actions concerning the treatment of Internet traffic. The act would prohibit, among other things, blocking lawful content, applications, services, or nonharmful devices, impairing or degrading lawful Internet traffic on the basis of Internet content, application, or service, or use of a nonharmful device, and specified practices relating to zero-rating, as defined. It would also prohibit fixed and mobile Internet service providers from offering or providing services other than broadband Internet access service that are delivered over the same last-mile connection as the broadband Internet access service, if those services have the purpose or effect of evading the above-described prohibitions or negatively affect the performance of broadband Internet access service.
• President Joe Biden announced the formation of a Department of Defense (DOD) China Task Force in remarks at the Pentagon. Biden said:
  • The task force will work quickly, drawing on civilian and
    military experts across the Department, to provide, within the next few months, recommendations to [Secretary of Defense Lloyd] Austin on key priorities and decision points so that we can chart a strong path forward on China-related matters.  It will require a whole-of-government effort, bipartisan cooperation in Congress, and strong alliances and partnerships.
  • That’s how we’ll meet the China challenge and ensure the American people win the competition of the future.
  • In a press release, the DOD explained further:
    • Ely Ratner, a special assistant to Secretary of Defense Lloyd J. Austin III, will lead the effort. The task force has four months to develop recommendations for senior defense leaders.
    • Defense officials called the task force a “sprint effort” that will examine high-priority topics including strategy, operational concepts, technology and force structure, force posture and force management and intelligence. The task force will also examine U.S. alliances and partnerships and their impact on Sino-American relations and DOD relations with China.
    • The 15-member task force will come from a wide swath of the department and include the Office of the Secretary of Defense staff, the Joint Staff, the services, the combatant commands and representatives from the intelligence community.
    • The task force will also speak with interagency partners to ensure the defense response is aligned with the whole-of-government approach toward China that the president wants.
• The United States (U.S.) Department of Labor (DOL) and Google settled claims the tech giant was discriminating against female and Asian American engineering applicants. In its statement, the DOL said it had reached agreement with Google “to resolve allegations of systemic compensation and hiring discrimination at the company’s California and Washington State facilities and will pay over $3.8 million to more than 5,500 current employees and job applicants.” The DOL added:
  • During a routine compliance evaluation, the department’s Office of Federal Contract Compliance Programs identified pay disparities affecting female employees in software engineering positions at its facilities in Mountain View, and in Seattle and Kirkland, Washington. The agency also identified hiring rate differences that disadvantaged female and Asian applicants for software engineering positions at Google’s locations in San Francisco and Sunnyvale, and in Kirkland.   
  • Under the terms of the early resolution conciliation agreement, Google agreed to the following:
    • To pay $3,835,052 to resolve OFCCP’s allegations, namely $1,353,052 in back pay and interest to 2,565 female employees in engineering positions subject to pay discrimination; and $1,232,000 in back pay and interest to 1,757 female and 1,219 Asian applicants for software engineering positions not hired.
    • Allocate a cash reserve of least $1,250,000 in pay-equity adjustments for the next 5 years for U.S. employees in engineering positions at Google’s Mountain View, Kirkland, Seattle and New York establishments, locations that house approximately 50 percent of Google’s engineering employees nationwide. Google has provided job opportunities to 51 female and 17 Asian applicants for software engineering positions.
  • Google agreed to enhance future compliance proactively and review its current policies, procedures and practices related to hiring, compensation; conduct analyses; and take corrective action to ensure non-discrimination. 
• The National Institute of Standards and Technology (NIST) has issued supplemental materials designed to help federal agencies, their private sector partners, and other interested parties on one of the agency’s foundational security guides. NIST explained:
  • New and updated supplemental materials for NIST Special Publication (SP) 800-53, Revision 5, Security and Privacy Controls for Information Systems and Organizations, and NIST SP 800-53B, Control Baselines for Information Systems and Organizations, are available for download to support the December 10, 2020, errata release of SP 800-53 and SP 800-53B: 
    • Control Catalog Spreadsheet (NEW). The entire security and privacy control catalog in spreadsheet format
    • Control Baselines Spreadsheet (NEW). The control baselines of SP 800-53B in spreadsheet format
    • Both spreadsheets have been preformatted for improved data visualization and allow for alternative views of the catalog and baselines. Users can also convert the contents to different data formats, including text only, comma-separated values (CSV), and other formats that can provide greater flexibility (e.g., by ingesting it into an existing product or platform and/or to facilitate automation). The spreadsheets were created from the Open Security Controls Assessment Language (OSCAL) version of the SP 800-53 Rev. 5 controls, which is offered as a supplemental material to the publications.
  • Additionally, the following existing supplemental materials for SP 800-53 were recently updated:
    • Analysis of updates between SP 800-53 Rev. 5 and Rev. 4 (UPDATED)
    • Mappings between SP 800-53 Rev. 5 and other frameworks and standards:
    • NIST Cybersecurity Framework and NIST Privacy Framework (UPDATED)
    • ISO/IEC 27001 (UPDATED)
• Senators John Thune (R-SD), Jon Tester (D-MT), Roger Wicker (R-MS), Gary Peters (D-MI), and Jerry Moran (R-KS) “reintroduced the “Telecommunications Skilled Workforce Act,” (S.163) legislation to address the shortage of trained workers necessary to fill next-generation jobs in the telecommunications industry in communities throughout the country” per their press release. They claimed “The Telecommunications Skilled Workforce Act would address the shortage of trained workers necessary to fill next-generation jobs by:
  • Establishing an Federal Communications Commission (FCC)-led interagency working group that, in consultation with the Department of Labor (DOL) and other federal and non-federal stakeholders, would be tasked with developing recommendations to address the workforce needs of the telecommunications industry.
  • Requiring the FCC, in consultation with DOL, to issue guidance on how states can address the workforce shortage in the telecommunications industry by identifying all of the federal resources currently available to them that can be used for workforce development efforts.
  • Directing the Government Accountability Office to conduct a study to determine the specific number of skilled telecommunications workers that will be required to build and maintain broadband infrastructure in rural areas and the 5G wireless infrastructure needed to support 5G wireless technology.
• Senate Banking, Housing and Urban Development Committee Chair Sherrod Brown (D-OH) and Senator Cory Booker (D-NJ) along with other Democratic colleagues wrote current Amazon CEO Jeff Bezos, and his successor, Amazon Web Services CEO Andy Jassy expressing “support for Amazon workers seeking to organize a union with the Retail, Wholesale and Department Store Union (RWDSU), and pushed the company to take this opportunity to recognize the true value of its workers to the company’s success and treat them as the critical assets they are.” Brown, Booker, and their colleagues stated “[t]he letter comes ahead of an upcoming election in Bessemer, Alabama, where Amazon warehouse workers will vote to form a union that will represent full and part-time workers.” They argued:
  • Amazon should view this as an opportunity to demonstrate its commitment to its stated values. Though Amazon has referred to their workers as “heroes fighting for their communities and helping people get critical items they need,” Amazon’s treatment of its workforce has not always reflected that. From using so-called “flex” workers to avoid paying full benefits to your employees, to failing to provide complete data on COVID-19 spread in the workplace, to spying on employees seeking to organize a union, Amazon has not always treated its workers with the dignity they deserve. During this campaign in Alabama, employees seeking to unionize have received misleading text messages, been overwhelmed by anti-union propaganda, and faced attempts to force in person voting during a pandemic that has resulted in the deaths of [nearly 500,000] Americans. All of these efforts represent disgraceful attempts to coerce Amazon employees out of exercising their voices and their rights under the National Labor Relations Act.
  • The upcoming election in Bessemer, Alabama is an opportunity for a reset. We ask that Amazon follow the law and allow their employees to freely exercise their right to organize this union. We will be paying close attention to the way Amazon conducts itself during this vote and call on Amazon to ensure an election for its workers in Alabama that honors the dignity of work.
• Senate Armed Services Committee Chair Jack Reed (D-RI), Senate Budget Committee Chairr Bernie Sanders (I-VT), Senator Sheldon Whitehouse (D-RI), and Senate Finance Committee Chair Ron Wyden (D-OR) introduced the “Build America’s Libraries Act” (S. 127) which would set up a new source of funding for United States public libraries to upgrade, including new technology and broadband. They explained:
  • This legislation would provide $5 billion over three years to build and modernize public libraries, including addressing needs that have arisen due to COVID–19, to enable libraries to better serve and engage their communities, particularly in underserved areas.  These federal funds could be utilized to help construct new libraries, build additions, improve accessibility, update technology and broadband infrastructure, enhance energy efficiency standards, and renovate and modernize facilities to better meet the evolving learning and information needs of the American public.
• Ireland’s Data Protection Commission (DPC) is being pressured by another stakeholder over its handling of its responsibilities as perhaps the most prominent supervisory authority under the General Data Protection Regulation (GDPR). A key committee in the European Union’s parliament looks to be starting the process under which the European Commission could seek to penalize Ireland for not properly enforcing the bloc’s data protection rules. This effort arises from the criticism over the DPC’s management of the complaint and subsequent court cases over Facebook’s compliance with the GDPR in light of the United States (U.S.) mass electronic surveillance. The European Parliament’s Civil Liberties, Justice and Home Affairs Committee introduced a draft resolution expressing the Parliament’s position visa via the DPC, notably the initiation of an infringement procedure:
  • shows deep concern that several complaints against breaches of the GDPR filed on 25th May 2018, have not yet been decided by the Irish Data Protection Commissioner, which is the lead authority for these cases; strongly condemns the attempt of the Irish Data Protection Authority to shift the costs of the judicial procedure to Maximilian Schrems, which would have created a massive chilling effect; calls on the Commission to start infringement procedures against Ireland for not properly enforcing the GDPR;
  • In a 2020 assessment of the GDPR after two years of being operative, the European Commission (EC) singled out Ireland and Luxembourg for not providing adequate resources to their data protection authorities:
    • Given that the largest big tech multinationals are established in Ireland and Luxembourg, the data protection authorities of these countries act as lead authorities in many important cross-border cases and may need larger resources than their population would otherwise suggest. However, the situation is still uneven between Member States and is not yet satisfactory overall.

Coming Events

• On 17 February, the House Energy and Commerce Committee’s Communications and Technology Subcommittee will hold a hearing titled “Connecting America: Broadband Solutions to Pandemic Problems” with these witnesses:
  • Free Press Action Vice President of Policy and General Counsel Matthew F. Wood
  • Topeka Public Schools Superintendent Dr. Tiffany Anderson
  • Communications Workers of America President Christopher M. Shelton
  • Wireless Infrastructure Association President and CEO Jonathan Adelstein
• On 17 February, the Federal Communications Commission (FCC) will hold an open meeting, its first under acting Chair Jessica Rosenworcel, with this tentative agenda:
  • Presentation on the Emergency Broadband Benefit Program. The Commission will hear a presentation on the creation of an Emergency Broadband Benefit Program. Congress charged the FCC with developing a new $3.2 billion program to help Americans who are struggling to pay for internet service during the pandemic.
  • Presentation on COVID-19 Telehealth Program. The Commission will hear a presentation about the next steps for the agency’s COVID-19 Telehealth program. Congress recently provided an additional $249.95 million to support the FCC’s efforts to expand connected care throughout the country and help more patients receive health care safely.
  • Presentation on Improving Broadband Mapping Data. The Commission will hear a presentation on the work the agency is doing to improve its broadband maps. Congress directly appropriated $65 million to help the agency develop better data for improved maps.
  • Addressing 911 Fee Diversion. The Commission will consider a Notice of Proposed Rulemaking that would implement section 902 of the Don’t Break Up the T-Band Act of 2020, which requires the Commission to take action to help address the diversion of 911 fees by states and other jurisdictions for purposes unrelated to 911. (PS Docket Nos. 20-291, 09-14)
  • Implementing the Secure and Trusted Communications Networks Act. The Commission will consider a Third Further Notice of Proposed Rulemaking that proposes to modify FCC rules consistent with changes that were made to the Secure and Trusted Communications Networks Act in the Consolidated Appropriations Act, 2021. (WC Docket No. 18-89)
• On 18 February, the House Financial Services will hold a hearing titled “Game Stopped? Who Wins and Loses When Short Sellers, Social Media, and Retail Investors Collide” with Reddit Co-Founder and Chief Executive Officer Steve Huffman testifying along with other witnesses.
• The U.S.-China Economic and Security Review Commission will hold a hearing titled “Deterring PRC Aggression Toward Taiwan” on 18 February.
• On 27 July, the Federal Trade Commission (FTC) will hold PrivacyCon 2021.

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