Other Developments, Further Reading, and Coming Events (9 June 2021)

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Other Developments

  • President Joe Biden signed an executive order on “Addressing the Threat from Securities Investments that Finance Certain Companies of the People’s Republic of China.” In a fact sheet, the White House explained:
    • President Biden signed an Executive Order (E.O.) to further address the ongoing national emergency declared in E.O. 13959 of November 12, 2020 with respect to the threat posed by the military-industrial complex of the People’s Republic of China (PRC). President Biden also expanded the scope of this national emergency by finding that the use of Chinese surveillance technology outside the PRC, as well as the development or use of Chinese surveillance technology to facilitate repression or serious human rights abuses, constitute unusual and extraordinary threats. This E.O. allows the United States to prohibit – in a targeted and scoped manner – U.S. investments in Chinese companies that undermine the security or democratic values of the United States and our allies.
    • The White House claimed the executive order will:
      • Solidify and strengthen a previous E.O to prohibit U.S. investments in the military-industrial complex of the People’s Republic of China: This E.O. will amend E.O. 13959 by creating a sustainable and strengthened framework for imposing prohibitions on investments in Chinese defense and surveillance technology firms. The E.O. prohibits United States persons from engaging in the purchase or sale of any publicly traded securities of any person listed in the Annex to the E.O. or determined by the Secretary of the Treasury, in consultation with the Secretary of State, and, as the Secretary of the Treasury deems appropriate, the Secretary of Defense:
        • To operate or have operated in the defense and related materiel sector or the surveillance technology sector of the economy of the PRC; or
        • To own or control, or to be owned or controlled by, directly or indirectly, a person who operates or has operated in any sector described above, or a person who is listed in the Annex to this E.O. or who has otherwise been determined to be subject to the prohibitions in this E.O.
      • Ensure that U.S. investments are not supporting Chinese companies that undermine the security or values of the United States and our allies: This E.O. prevents U.S. investment from supporting the Chinese defense sector, while also expanding the U.S. Government’s ability to address the threat of Chinese surveillance technology firms that contribute — both inside and outside China — to the surveillance of religious or ethnic minorities or otherwise facilitate repression and serious human rights abuses. It signals that the Administration will not hesitate to prevent U.S. capital from flowing into the PRC’s defense and related materiel sector, including companies that support the PRC’s military, intelligence, and other security research and development programs; or into Chinese companies that develop or use Chinese surveillance technology to facilitate repression or serious human rights abuse.  Tackling these challenges head-on is consistent with the Biden Administration’s commitment to protecting core U.S. national security interests and democratic values, and the Administration will continue to update the list of PRC entities as appropriate.  At the same time, the E.O.’s prohibitions are intentionally targeted and scoped. 
      • The President listed the following 59 entities as subject to the E.O.’s prohibitions. The prohibitions against the entities listed in the Annex to this E.O. shall take effect beginning at 12:01 a.m. eastern daylight time on August 2, 2021. The U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) will also list these 59 entities on its new Non-SDN Chinese Military-Industrial Complex Companies List (NS-CMIC List).
  • The Supreme Court of the United States (SCOTUS) narrowed the scope of the “Computer Fraud and Abuse Act” (CFAA) in Van Buren v. United States in holding that an authorized user of a computer system that accesses information beyond her authorization does not violate the CFAA.” This is the first significant ruling on the CFAA in recent history. In this case, the defendant was a police officer who took money as part of a sting operation to illegally use his access to Georgia’s database of license plates to obtain information about a person. The Eleventh Circuit Court of Appeals denied his appeal of his conviction under the CFAA per a previous ruling in that circuit that “a defendant violates the CFAA not only when he obtains information that he has no “rightful[]” authorization whatsoever to acquire, but also when he obtains information “for a nonbusiness purpose.” SCOTUS found that Section 1030(a)(2) of the CFAA covers those who obtain information from particular areas in the computer—such as files, folders, or databases—to which their computer access does not extend. It does not cover those who, like [the defendant], have improper motives for obtaining information that is otherwise available to them.” SCOTUS further explained in its reversal of the Eleventh Circuit:
    • In sum, an individual “exceeds authorized access” when he accesses a computer with authorization but then obtains information located in particular areas of the computer—such as files, folders, or databases—that are off limits to him. The parties agree that Van Buren accessed the law enforcement database system with authorization. The only question is whether Van Buren could use the system to retrieve license-plate information. Both sides agree that he could. Van Buren accordingly did not “excee[d] authorized access” to the database, as the CFAA defines that phrase, even though he obtained information from the database for an improper purpose.
  • Representatives Ted Lieu (D-CA), Nancy Mace (R-SC), Suzan DelBene (D-WA) and Anna Eshoo (D-CA) reintroduced the “Ensuring National Constitutional Rights for Your Private Telecommunications (ENCRYPT) Act” (H.R.3520) that “would preempt state and local government encryption laws to ensure a uniform, national policy for the interstate issue of encryption technology.”
  • The European Union Agency for Cybersecurity (ENISA) sent the European Commission “the first candidate cybersecurity certification scheme on Common Criteria” under the Cybersecurity Act. ENISA stated:
    • In July 2019, the EUCC was the first candidate cybersecurity certification Scheme request received by the EU Agency for Cybersecurity (ENISA) under the Cybersecurity Act.
    • This scheme aims to serve as a successor to the currently existing schemes operating under the SOGIS MRA (Senior Officials Group Information Systems Security Mutual Recognition Agreement).
    • It covers the certification of ICT products, using the Common Criteria ISO/IEC 15408 and is the foundation of a European Cybersecurity certification framework. The latter will consist of several schemes that it is expected to gradually increase trust in ICT products, services and processes certified under these schemes and reduce the costs within the Digital Single Market.
    • ENISA has developed it with the support of an Ad Hoc Working Group composed of outstanding cybersecurity certification experts, and members of the European Cybersecurity Certification Group (ECCG), that is composed of representatives of the EU Member States.
  • The Federal Trade Commission (FTC) issued its “2020 Privacy and Data Security Update,” a summary of its actions in these issue areas during the calendar year of 2020. The agency asserted in a blog post that “[w]hen it comes to consumer privacy and data security, your clients and colleagues want the word on what’s been happening at the FTC – and they want it in an accessible, to-the-point format.” The FTC highlighted enforcement actions:
    • Privacy. In addition to final court approval of the FTC’s settlement with Facebook, 2020 saw the Commission’s action against Zoom to address false and deceptive encryption claims and Zoom’s unfair practice of secretly installing software that bypassed a security feature in Apple’s Safari browser.
    • COPPA. Cases against HyperBeard and Miniclip demonstrate the FTC’s continued commitment to enforcing the Children’s Online Privacy Protection Rule.
  • Australia’s Parliamentary Joint Committee on Intelligence and Security (PJCIS) issued a report as part of the government’s effort to enter into an agreement with the United States (U.S.) under the latter’s the “Clarifying Lawful Overseas Use of Data Act” (CLOUD Act) (P.L. 115-141). The committee made a range of recommendations to the government in modifying the bill the government introduced in Parliament March 2020. The U.S. Department of Justice (DOJ) claimed the CLOUD Act was enacted “to speed access to electronic information held by U.S.-based global providers that is critical to our foreign partners’ investigations of serious crime, ranging from terrorism and violent crime to sexual exploitation of children and cybercrime.” The U.S. has executed one CLOUD Act agreement with the United Kingdom, the Access to Electronic Data for the Purpose of Countering Serious Crime. The CLOUD Act was impelled forward in large part by the Supreme Court case, the United States v. Microsoft, in which the U.S. DOJ wanted Microsoft to hand over the email of a U.S. national that were being stored on servers in Ireland as part of a criminal investigation.
  • The National Institute of Standards and Technology’s (NIST) National Cybersecurity Center of Excellence (NCCoE) has released a new draft report, NISTIR 8320, Hardware-Enabled Security: Enabling a Layered Approach to Platform Security for Cloud and Edge Computing Use Cases that “replaces the draft cybersecurity white paper, Hardware-Enabled Security for Server Platforms, which was released in April 2020.” NCCoE is asking for comments.
  • In a statement, the Privacy Commissioner for Personal Data, Hong Kong Ada CHUNG Lai-ling, “welcome[d] WhatsApp’s acceptance of suggestions to provide practical alternatives to users who do not agree to the new Terms of Service and Privacy Policy (New Terms and Privacy Policy).” She added:
    • Since January 2021, the Office of the Privacy Commissioner for Personal Data, Hong Kong (PCPD), has been communicating with the representatives of the headquarters of WhatsApp to relay users’ concerns on the New Terms and Privacy Policy. The PCPD has just received WhatsApp’s latest response and noted WhatsApp’s announcement that no one will have their accounts deleted or lose functionality of WhatsApp because of their non-acceptance of the New Terms and Privacy Policy. According to WhatsApp, they will remind users who have not accepted the New Terms and Privacy Policy of the update, but they have no plans to limit the functionality of WhatsApp for those users.
  • The United States’ (U.S.) National Telecommunications and Information Administration (NTIA) announced that more states had joined its broadband mapping efforts:
    • NTIA’s National Broadband Availability Map (NBAM) recently added Arizona, Idaho, Kansas, Maryland, Mississippi, and South Dakota to its growing roster of state participants. To date, the NBAM includes 36 states and four federal agencies: US Department of Agriculture (USDA), the Bureau of Indian Affairs (BIA), the Economic Development Administration (EDA) and the Appalachian Regional Commission (ARC).
    • The NBAM is a geographic information system platform which allows for the visualization and analysis of federal, state, and commercially available data sets. This includes data from the Federal Communications Commission, U.S. Census Bureau, Universal Service Administrative Company, USDA, Ookla, Measurement Lab, BroadbandNow, White Star, and the state governments. The mapping platform provides users, including administrators from the 36 participating states, with access to the NBAM and its data to better inform broadband projects and funding decisions in their states.
  • none of your business (noyb) “sent over 500 draft complaints to companies who use unlawful cookie banners – making it the largest wave of complaints since the General Data Protection Regulation (GDPR) came into force.” noyb added:
    • By law, users must be given a clear yes/no option. As most banners do not comply with the requirements of the GDPR, noyb developed a software that recognizes various types of unlawful cookie banners and automatically generates complaints. Nevertheless, noyb will give companies a one-month grace period to comply with EU laws before filing the formal complaint. Over the course of a year, noyb will use this system to ensure compliance of up to 10,000 of the most visited websites in Europe. If successful, users should see simple and clear “yes or no” options on more and more websites in the upcoming months.
    • Frustrating Europe into consent. The GDPR was meant to ensure that users have full control over their data, but being online has become a frustrating experience for people all over Europe. Annoying cookie banners appear at every corner of the web, often making it extremely complicated to click anything but the “accept” button. Companies use so-called “dark patterns” to get more than 90% of users to “agree” when industry statistics show that only 3% of users actually want to agree.
    • Blame it on the GDPR? Many internet users mistake this annoying situation as a direct outcome of the GDPR, when in fact companies misuse designs in violation of the law. The GDPR demands a simple “yes” or “no”, as reasonable people would expect, but companies often have the power over the design and narrative when implementing the GDPR.
    • Automated system to produce up to 10.000 complaints. To address this extremely wide-spread issue, noyb has developed a system that automatically discovers different types of violations. The noyb legal team reviews each website, while the system automatically generates a GDPR complaint. Companies are served with an informal draft complaint via email and even get a step-by-step guide (PDF) on how to change software settings to comply with the law. If companies choose not to change their settings within a month, noyb will however file a complaint with the relevant authority, which may issue a fine of up to € 20 Million. Further details can be found in the FAQs on our platform.
  • The United States-China Economic and Security Review Commission released a report titled “Unfinished Business: Export Control and Foreign Investment Reforms,” in which the commission made these key findings:
    • Defining a list of “emerging and foundational” technologies is a crucial part of implementing the Foreign Investment Risk Review Modernization Act (FIRRMA) and the Export Control Reform Act (ECRA). Since these acts became law in 2018, there has been a significant delay in forming this list along with a lack of clarity on the process and methodology. The list would support the development of the new controls directed by these two acts and identify additional national security risks not covered by preexisting control lists. In crafting ECRA, Congress entrusted the U.S. Department of Commerce with implementing its intent for strengthening U.S. export control laws, but the Department of Commerce has, to date, failed to carry out its responsibilities.
    • Lack of clarity from the Department of Commerce on what constitutes emerging and foundational technologies impedes the ability of the Committee on Foreign Investment in the United States (CFIUS) to fulfill its responsibilities. The years-long delay in developing these definitions may exacerbate national security risks. By law, a list of technologies defined as emerging and foundational triggers mandatory filings on certain transactions, drawing CFIUS scrutiny to higher-risk transactions. In the absence of the complete list, CFIUS continues to operate without this additional guidance and may be constrained in its ability to screen transactions.
    • Interagency coordination and full utilization of private sector and academic expertise could support the development of this list. The Department of Commerce has strengthened the role of the relevant expert advisory body and solicited public comments on compiling the list of emerging and foundational technologies, but there is no clarity on how, whether, or when their expertise will be incorporated. Coordination of national security risk assessments across other agencies could also lead to a faster completion of the list and encourage agencies to fill gaps in protecting technologies across the board.
  • New Zealand’s (NZ) National Cyber Security Centre (NCSC) issued guidance on ransomware in which the agency stated:
    • Recent high-profile ransomware incidents, both in New Zealand and abroad, offer a timely reminder to all New Zealand organisations about the importance of information security and cyber resilience. Preparation is everything. Your organisation needs to practise defence in depth to protect your systems and people against malicious cyber activity, and to be prepared for an incident should one occur.
  • Prime Minister Justin Trudeau has renominated Daniel Therrien to be Canada’s Privacy Commissioner for one more year even though Trudeau could have named Therrien for another seven year term. Therrien has served in this role since 2014.

Further Reading

  • Alberta orders major universities to suspend pursuit of new partnerships with China” By Steven Chase and Robert Fife — The Globe and Mail. Alberta has ordered its four major universities to suspend the pursuit of partnerships with individuals or organizations linked to the Chinese government or ruling Chinese Communist Party, citing concerns over national security and the risk that the research could be used to facilitate human-rights abuses. The order affects the University of Alberta, the University of Calgary, the University of Lethbridge and Athabasca University, institutions with a strong research focus in the province.
  • Police In Delhi Have Descended On Twitter’s Headquarters In The Country” By Pranav Dixit — BuzzFeed News. On Monday, a team of officers from the Special Cell, an elite branch of the police in charge of investigating terrorism and organized crime in New Delhi, descended on Twitter’s offices in the city to “serve a notice” to the head of Twitter in India. Police also attempted to enter a Twitter office in Gurugram, a location that has been permanently closed, a Twitter spokesperson told BuzzFeed News. The move came three days after Twitter put a “manipulated media” label on the tweets of half a dozen members of India’s ruling Bharatiya Janata Party, in which they had accused the Indian National Congress, the main opposition party, of scheming to damage Indian Prime Minister Narendra Modi for his handling of the second wave of India’s coronavirus pandemic.
  • Huawei founder urges shift to software to counter U.S. sanctions” By David Kirton — Reuters. Founder of Chinese tech giant Huawei Technologies (HWT.UL) Ren Zhengfei has called on the company’s staff to “dare to lead the world” in software as the company seeks growth beyond the hardware operations that U.S. sanctions have crippled. The internal memo seen by Reuters is the clearest evidence yet of the company’s direction as it responds to the immense pressure sanctions have placed on the handset business that was at its core.
  • In Biden’s broadband plan, cable is in for the fight of its life” By Issie Lapowsky — Protocol. The Biden administration’s broadband plan read like a dream come true to Donnel Baird. The $2 trillion American Jobs Plan, introduced in late March, had a whopping $100 billion for broadband infrastructure baked in — and a promise to give that money first and foremost to affordable local networks owned by municipalities and co-ops. Last year, at the start of the pandemic, Baird, who is CEO of the greentech startup BlocPower, helped launch one such co-op in the Bronx, which is now providing fiber connectivity to nearly 200,000 people in the local community for free. Before President Biden took office, Baird says he met with Biden transition staffers to talk about this work and how investing in community-owned broadband networks could help close the digital divide once and for all.
  • Spies suspect 500 incidents of foreign meddling in Australian politics, society” By Peter Hartcher — Sydney Morning Herald. Australian intelligence has identified about 500 recent incidents of covert foreign agents interfering in domestic politics and society, but the nation’s chief spy insists that “at least 99.9 per cent” of the diaspora communities here are uninvolved. The previous head of domestic spy agency ASIO, Duncan Lewis, had said in 2017 that the agency was being overwhelmed by foreign interference and espionage and in 2018 that it was happening at unprecedented levels.
  • The federal government is rolling out record amounts of broadband funding. It could be just the beginning.” By Cat Zakrzewski — The Washington Post. The federal government is starting to disburse more than $10 billion to bring more Americans affordable Internet. Tens of millions of Americans are eligible for a new “Emergency Broadband Benefit” that launched today to help people affected by the pandemic pay their Internet bills. The $3.2 billion program will pay $50 per month to cover costs for all Americans who lost some income in the last year and earn less than $198,000. People who receive food stamps, Medicaid or a federal Pell grant, among others, are also eligible. There’s also an additional one-time $100 discount available for people who purchase new equipment like a laptop or tablet through a participating company. (My colleague Geoffrey Fowler has a helpful guide about how you can sign up).
  • A security researcher found Wi-Fi vulnerabilities that have existed since the beginning” By Mitchell Clark — The Verge. The security researcher who discovered the Krack Wi-Fi vulnerability has discovered a slew of other flaws with the wireless protocol most of us use to power our online lives (via Gizmodo). The vulnerabilities relate to how Wi-Fi handles large chunks of data, with some being related to the Wi-Fi standard itself, and some being related to how it’s implemented by device manufacturers. The researcher, Mathy Vanhoef, calls the collection of vulnerabilities “FragAttacks,” with the name being a mashup of “fragmentation” and “aggregation.” He also says the vulnerabilities could be exploited by hackers, allowing them to intercept sensitive data, or show users fake websites, even if they’re using Wi-Fi networks secured with WPA2 or even WPA3. They could also theoretically exploit other devices on your home network.
  • Streaming Giants Are Spending Billions Overseas. Here Comes the Pushback.” By R.T. Watson — The Wall Street Journal. U.S.-based streaming services are shaking up the entertainment industry’s world order. Netflix Inc., Amazon.com Inc., Walt Disney Co. and AT&T Inc.’s HBO Max are chasing growth in overseas markets, investing billions of dollars to produce local-language television series and movies. That push is creating boom times—and competition—for writers, actors, producers and crew. It is also threatening established broadcast networks and distributors in other countries and prompting action from local lawmakers and producers over equal pay and content ownership. In the past, long-established local players could easily contract top-tier talent in international markets such as Spain, Indonesia or Brazil. With cash-rich streaming companies such as Netflix in the mix, demand for writers, directors, and actors is high, putting pressure on local broadcasters and distributors with fewer resources.
  • Pipeline Hack Points to Growing Cybersecurity Risk for Energy System” By Bard Plumer — The New York Times. The audacious ransomware attack that shut down a major fuel pipeline and sent Americans scrambling for gasoline in the Southeast this week was not the first time hackers have disrupted America’s aging, vulnerable energy infrastructure. And it’s unlikely to be the last. Across the globe, cyberattackers are increasingly taking aim at the energy systems that underpin modern society. A February report from IBM found that the energy industry was the third most targeted sector for such attacks in 2020, behind only finance and manufacturing. That was up from ninth place in 2019.
  • Internet prices kick off Washington brawl” By Margaret Harding McGill — Axios. President Biden’s promise to cut the price of Americans’ internet bills has provoked a fierce lobbying campaign by cable and telecom companies to prove that the cost of broadband has already dropped. Why it matters: Internet providers are desperate to fend off any move to regulate the prices they charge, while the government is increasingly viewing connectivity as an essential service.
  • Starlink review: broadband dreams fall to Earth” By Nilay Patel — The Verge. The problem with reality is that it is very irritating. In our imaginations, we might dream of a satellite internet system that delivers lightning-fast broadband speeds from space, freeing us from the dreary earthbound experience of cable monopolies and wireless data caps. We might envision an ISP that smashes through the plodding local politics of digging fiber trenches by literally achieving escape velocity and delivering fast, reliable internet from the heavens above. A system that will work on moving trucks, RVs, and even boats. Space-based internet access that will change everything because there is nothing technology cannot achieve in our minds. Starlink, a new satellite internet service from SpaceX, is a spectacular technical achievement that might one day do all of these things. But right now it is also very much a beta product that is unreliable, inconsistent, and foiled by even the merest suggestion of trees.
  • Labor calls for ransomware notice scheme” By Denham Sadler — Innovation Aus. The government should establish a mandatory ransomware notification scheme similar to the existing data breach requirements, shadow cybersecurity spokesperson Tim Watts says. Speaking on a webinar hosted by CyberCX chief strategy officer and former Australian Cyber Security Centre (ACSC) head Alastair MacGibbon, Mr Watts called on the federal government to play a bigger role in combating the growing threat of ransomware.

Coming Events

  • On 9 June, the House Homeland Security Committee will hold a hearing on the Colonial Pipeline ransomware attack with the company’s CEO and FireEye Mandiant’s Senior Vice President and Chief Technology Officer Charles Carmakal.
  • On 9 June, the Senate Banking, Housing, and Urban Affairs Committee’s Economic Policy Subcommittee will hold a hearing titled “Building A Stronger Financial System: Opportunities of a Central Bank Digital Currency.”
  • On 10 June, the Senate Homeland Security and Governmental Affairs Committee will hold a hearing on the nominations of Robin Carnahan to be Administrator, General Services Administration; Jen Easterly to be Director, Cybersecurity and Infrastructure Security Agency, DHS; and Chris Inglis to be National Cyber Director.
  • The House Judiciary Committee will conduct an oversight hearing of the Federal Bureau of Investigation on 10 June.
  • On 14 June, the California Privacy Protection Agency Board will hold its inaugural meeting.
  • On 17 June the Senate Appropriations Committee will hold a hearing on the Department of Defense’s FY 2022 budget request.
  • The Federal Communications Commission (FCC) will hold its June meeting on 17 June with this tentative agenda:
    • Protecting Against National Security Threats to the Communications Supply Chain through the Equipment Authorization and Competitive Bidding Programs.
      The Commission will consider a Notice of Proposed Rulemaking and Notice of Inquiry seeking comments on steps it could take to secure the nation’s critical communications networks through its equipment authorization and competitive bidding programs. (ET Docket No. 21-232; EA Docket No. 21-233)
    • Allowing Earlier Equipment Marketing and Importation Opportunities. The Commission will consider a Report and Order that would adopt changes to the equipment authorization rules to allow expanded marketing and importation of radiofrequency devices prior to certification, with conditions. (ET Docket No. 20-382)
    • Improving the Emergency Alert System and Wireless Emergency Alerts. The Commission will consider a Report and Order and Further Notice of Proposed Rulemaking to implement section 9201 of the National Defense Authorization Act for Fiscal Year 2021, which is intended to improve the way the public receives emergency alerts on their mobile phones, televisions, and radios. (PS Docket Nos. 15-94, 15-91)
    • Improving Robocall and Spoofing Input from Private Entities. The Commission will consider a Report and Order to implement Section 10(a) of the TRACED Act by adopting a streamlined process that will allow private entities to alert the FCC’s Enforcement Bureau about suspected unlawful robocalls and spoofed caller ID. (EB Docket No. 20-374)
    • Promoting Telehealth for Low-Income Consumers. The Commission will consider a Second Report and Order that would provide guidance on the administration of the Connected Care Pilot Program and further instructions to program participants. (WC Docket No. 18-213)
    • Exploring Spectrum Options for Devices Used to Mark Fishing Equipment. The Commission will consider a Notice of Proposed Rulemaking that would satisfy the Commission’s statutory obligation in Section 8416 of the National Defense Authorization Act for Fiscal Year 2021 to initiate a rulemaking proceeding to explore whether to authorize devices that can be used to mark fishing equipment for use on Automatic Identification System (AIS) channels consistent with the core purpose of the AIS to prevent maritime accidents. (WT Docket No. 21-230)
    • Improving Low Power FM Radio. The Commission will consider an Order on Reconsideration of a proceeding to modernize the LPFM technical rules. (MB Docket No. 19-193)
    • Enforcement Bureau Action. The Commission will consider an enforcement action.
  • On 27 July, the Federal Trade Commission (FTC) will hold PrivacyCon 2021.

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2021. Unauthorized use and/or duplication of this material without express and written permission from this site’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Michael Kans, Michael Kans Blog, and michaelkans.blog with appropriate and specific direction to the original content.

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