Further Reading, Other Developments, and Coming Events (28 July)

First things first, if you would like to receive my Technology Policy Update, email me. You can find some of these Updates from 2019 and 2020 here.

Here are Further Reading, Other Developments, and Coming Events.

Coming Events

  • On 28 July, the House Rules Committee will consider the rule for and amendments to the H.R. 7617—Department of Defense Appropriations Act, 2021 [Defense, Commerce, Justice, Science, Energy and Water Development, Financial Services and General Government, Homeland Security, Labor, Health and Human Services, Education, Transportation, Housing, and Urban Development Appropriations Act, 2021].
  • On 28 July, the Senate Commerce, Science, and Transportation Committee’s Communications, Technology, Innovation, and the Internet Subcommittee will hold a hearing titled “The PACT Act and Section 230: The Impact of the Law that Helped Create the Internet and an Examination of Proposed Reforms for Today’s Online World.”
  • On 28 July the House Science, Space, and Technology Committee’s Investigations and Oversight and Research and Technology Subcommittees will hold a joint virtual hearing titled “The Role of Technology in Countering Trafficking in Persons” with these witnesses:
    • Ms. Anjana Rajan, Chief Technology Officer, Polaris
    • Mr. Matthew Daggett, Technical Staff, Humanitarian Assistance and Disaster Relief Systems Group, Lincoln Laboratory, Massachusetts Institute of Technology
    • Ms. Emily Kennedy, President and Co-Founder, Marinus Analytics
  • On  29 July, the House Judiciary Committee’s Antitrust, Commercial, and Administrative Law Subcommittee will hold its sixth hearing on “Online Platforms and Market Power” titled “Examining the Dominance of Amazon, Apple, Facebook, and Google” that will reportedly have the heads of the four companies as witnesses.
  • On 30 July the House Oversight and Reform Committee will hold a hearing on the tenth “Federal Information Technology Acquisition Reform Act” (FITARA) scorecard on federal information technology.
  • On 30 July, the Senate Commerce, Science, and Transportation Committee’s Security Subcommittee will hold a hearing titled “The China Challenge: Realignment of U.S. Economic Policies to Build Resiliency and Competitiveness” with these witnesses:
    • The Honorable Nazak Nikakhtar, Assistant Secretary for Industry and Analysis, International Trade Administration, U.S. Department of Commerce
    • Dr. Rush Doshi, Director of the Chinese Strategy Initiative, The Brookings Institution
    • Mr. Michael Wessel, Commissioner, U.S. – China Economic and Security Review Commission
  • On 4 August, the Senate Armed Services Committee will hold a hearing titled “Findings and Recommendations of the Cyberspace Solarium Commission” with these witnesses:
    • Senator Angus S. King, Jr. (I-ME), Co-Chair, Cyberspace Solarium Commission
    • Representative Michael J. Gallagher (R-WI), Co-Chair, Cyberspace Solarium Commission
    • Brigadier General John C. Inglis, ANG (Ret.), Commissioner, Cyberspace Solarium Commission
  • On 6 August, the Federal Communications Commission (FCC) will hold an open meeting to likely consider the following items:
    • C-band Auction Procedures. The Commission will consider a Public Notice that would adopt procedures for the auction of new flexible-use overlay licenses in the 3.7–3.98 GHz band (Auction 107) for 5G, the Internet of Things, and other advanced wireless services. (AU Docket No. 20-25)
    • Radio Duplication Rules. The Commission will consider a Report and Order that would eliminate the radio duplication rule with regard to AM stations and retain the rule for FM stations. (MB Docket Nos. 19-310. 17-105)
    • Common Antenna Siting Rules. The Commission will consider a Report and Order that would eliminate the common antenna siting rules for FM and TV broadcaster applicants and licensees. (MB Docket Nos. 19-282, 17-105)
    • Telecommunications Relay Service. The Commission will consider a Report and Order to repeal certain TRS rules that are no longer needed in light of changes in technology and voice communications services. (CG Docket No. 03-123)

Other Developments

  • The United States’ (US) Office of Management and Budget (OMB), an agency within the Executive Office of the President, has issued a memorandum in the same vein as other Trump Administration initiatives to increase the US government’s buying of goods and services produced domestically. Noting that 40% of the funds provided by Congress through annual legislation will be spent between 1 July and 30 September (roughly $200 billion), OMB urged federal agencies “to keep the following considerations in mind to support timely awards and maximize return on investment from each taxpayer dollar” among others:
    • Take full advantage of acquisition flexibilities and innovative tools. This week, the President’s Management Agenda unveiled a new cross-agency priority goal (CAP Goal) on “frictionless acquisition.” This CAP Goal creates a management platform to leverage modem buying strategies that have been shown to achieve just-in-time delivery with improved customer satisfaction and enable access to a broader and more innovative suite of companies and solutions. Agencies can review the resources on acquisition innovation and opportunities for collaboration by going to the frictionless CAP Goal on performance.gov.
      • The Goal Statement of this new CAP is “The Federal Government will deliver commercial items at the same speed as the market place & manage customers’ delivery expectations for acquisitions of non-commercial items by breaking down barriers to entry using modern business practices and technologies” as explained in a detailed presentation on frictionless acquisition released this month.
    • Use the resources of category management. As part of the ongoing transformation of federal acquisition, procurement involving common needs has been organized around categories of spending led by market experts who share business intelligence and help agencies avoid duplicative contracting work. This business structure has saved taxpayers more than $27 billion since FY 2016 and made it much easier for buyers to make rapid, well­ informed decisions on how best to acquire IT hardware, security, consulting services and many other every day needs that account for more than half of all contract spending. To stay current with market trends and available federal solutions, agencies should bookmark the category management dashboards on the acquisition gateway at https://hallways.cap.gsa.gov/app/#/.
    • Buy American. E.O. 13881 strengthens the general preference for American-made goods and, for the first time in 65 years, increases the percentage of U.S. manufactured content that must be in a product to qualify for the preference, including a very high standard for iron and steel. Agencies are encouraged to work with the Federal Acquisition Regulatory Council (FAR Council) to consider early implementation, as appropriate, while the rulemaking process proceeds.
    • In a related memorandum issued earlier this month, OMB asserted
      • Under the President’s Management Agenda and the leadership of OMB ‘s Office of Federal Procurement Policy (OFPP), the Administration has elevated the importance of acquisition innovation and category management as key pillars of a modernized procurement system. These pillars are proving to be critical assets in the face of market conditions that require heightened agility and the ongoing need r physical distancing as communities take steps to reopen. We are seeing smart use of existing contract vehicles and resources, supported by our category management market experts, such as for cleaning and distinction, information technology related to telework and healthcare, and enhanced entry screening services. We are also seeing growing examples of agencies leveraging innovative business practices, such as virtual acquisitions, that save time and enable acquisitions to continue where they might otherwise have been stopped.
      • OMB went on to detail best practices and examples in how agencies have adapted their procurement authority to the pandemic commensurate with ongoing Administration priorities such as category management
  • Senator Amy Klobuchar (D-MN) and some of her Democratic colleagues wrote Attorney General William Barr “to raise serious concerns regarding Google LLC’s (Google) proposed acquisition of Fitbit, Inc. (Fitbit)”. They stated
    • We are aware that the Antitrust Division of the Department of Justice is investigating this transaction and has issued a Second Request to gather additional information about the acquisition’s potential effects on competition. Amid reports that Google is offering modest, short-term concessions to overseas enforcers to avoid a full-scale investigation of the transaction in Europe, we write to urge the Division to continue with its efforts to conduct a thorough and comprehensive review of this proposed merger and to take any and all enforcement action warranted by the law and the evidence.
    • This letter comes at a time when the Department of Justice is considering Google’s potential antitrust practices and whether to file suit. The European Commission is also investigating the Google acquisition of FitBit.
    • Klobuchar is the Ranking Member of the Senate Judiciary Committee’s Antitrust, Competition Policy and Consumer Rights Subcommittee and was joined on the letter by Senators Richard Blumenthal (D-CT), Cory Booker (D-NJ), Mazie K. Hirono (D-HI), Sherrod Brown (D-OH), Mark Warner (D-VA), and Elizabeth Warren (D-MA).
  • Facebook and members of a class action and their attorneys have reached a second settlement in a suit brought under Illinois’ “Biometric Information Privacy Act” after a first settlement was rejected by the judge overseeing Patel, et al. v. Facebook, Inc.,. In January, the plaintiffs and Facebook agreed on a $550 million settlement to resolve claims the social media giant used and stored  people’s images contrary to the Illinois ban on such practices absent explicit consent. Facebook faced liability of up to $5000 per person affected and more than $40 billion in total potential liability. However, the judge thought the settlement was too low considering the Illinois legislature expressed its intention that violations would be punished more on the order of $1000 per person. Now, the parties have added $100 million, arriving at a $650 million settlement the judge will still need to bless.
  • Secretary of State Mike Pompeo made a speech at the Ronald Reagan Library “to make clear that the threats to Americans that President Trump’s China policy aims to address are clear and our strategy for securing those freedoms established.” Pompeo’s speech in the fourth in a series of Trump Administration officials making the Administration’s case against the People’s Republic of China (PRC), in some cases conflating PRC’s vying with the United States worldwide with the COVID-19 pandemic, suggesting the PRC is responsible for the course of the virus in the US and not Trump Administration policy.
  • The Department of Defense’s National Security Agency (NSA) and Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) “released an advisory for critical infrastructure Operational Technology (OT) and Industrial Controls Systems (ICS) assets to be aware of current threats we observe, prioritize assessing their cybersecurity defenses and take appropriate action to secure their systems.” The agencies asserted “[d]ue to the increase in adversary capabilities and activities, the criticality to U.S. national security and way of life, and the vulnerability of OT systems, civilian infrastructure makes attractive targets for foreign powers attempting to harm to US interests or retaliate for perceived US aggression.”
  • The Secretary of Defense released a memorandum for Department of Defense (DOD) regarding “poor Proper Operations Security (OPSEC) practices within DOD in the past have resulted in the unauthorized disclosure or ” leaks” of controlled unclassified information (CUI), including information to be safeguarded under the CUI category for OPSEC, as well as classified national security information (together referred to here as “non-public information”). Secretary of Defense Mark Esper asserted “[o]ngoing reviews reveal a culture of insufficient OPSEC practices and habits within the DOD” and stated “[m]y goal, through an OPSEC campaign, is to change that culture across DOD by reminding DOD personnel.”
  • The United Kingdom’s Information Commissioner’s Office (ICO) published its annual report for 2019-2020, “covering what the Information Commissioner has called a “transformative period” for privacy and data protection and broader information rights.” The ICO offered these highlights:
    • Supporting and protecting the public and organisations
      • The Age Appropriate Design Code, introduced by the Data Protection Act 2018, was published in January. When it comes into full effect, it will help steer businesses to comply with current information rights legislation.
      • We intervened in the High Court case on the use of facial recognition technology by the South Wales Police as part of our work to ensure that the use of this technology does not infringe people’s rights.  As a response to the judgement, we issued the first Commissioner’s Opinion.
      • Our new freedom of information strategy was launched which sets out how we work to create a culture of openness in public authorities.  It also commits us to making the case for reform of the access to information law as set out previously in our Outsourcing Oversight report.
      • In figures:
        • We received 38,514 data protection complaints.
        • We closed 39,860 data protection cases (up from 34,684 in 2018/19) .
        • We received 6,367 freedom of information complaint cases.
    • Enforcement
      • We took regulatory action 236 times in response to breaches of the legislation that we regulate. That included 54 information notices, eight assessment notices, seven enforcement notices, four cautions, eight prosecutions and 15 fines.  
      • Over 2,100 investigations were conducted.
    • Innovation
      • Through our successful regulatory sandbox service, we have worked with a number of innovative organisations of all sizes to explore new data uses in a safe way while helping to ensure their customers’ privacy.
      • We also received additional resources from the government’s regulators innovation fund to set up a hub with other regulators to streamline and reduce burdens on businesses and public services using data.
      • In January, we launched our consultation on an AI framework to allow the auditing and assessment of the risk associated with AI applications and how to ensure their use is transparent, fair and accountable.
    • International
      • On a global scale, we continue to chair the Global Privacy Assembly, driving forward the development of the assembly into an international network that can have an impact on key data protection issues across the year. This helps to protect UK citizen’s personal data as it crosses borders and helps UK businesses operating internationally.
      • Due to the period covered by the report it does not reflect the impact of COVID-19 although, acknowledging the pandemic, Ms Denham said: ”The digital evolution of the past decade has accelerated at a dizzying speed in the past few months. Digital services are now central to how so many of us work, entertain ourselves and talk to friends and family.”

Further Reading

  • The Twitter Hacks Have to Stop” – The Atlantic. Bruce Schneier makes the case that the United States and other western democracies must step in and regulate vital platforms like Twitter for security and size given the central role they play in most societies. Letting these companies implement their own security without oversight or transparency has led to a situation where the account of world leaders or government agencies are vulnerable to hacks and misinformation. Schneier thinks the size and dominance of Twitter, Facebook, etc is a major part of this problem that must also be addressed.
  • US and Australia set to launch campaign to counter disinformation” – Sydney Morning Herald. Two of the Five Eyes allies met in Washington on 27 July for their annual Australia-U.S. Ministerial Consultations (AUSMIN) and part of their planning on how to counter the People’s Republic of China (PRC) is working together on an effort to address the PRC’s disinformation campaigns. The already close relationship between Washington and Canberra has deepened as tensions between the United States (US) and PRC continue to escalate. However, the US and Australia are framing this initiative as aiming to counter all disinformation in the Indo-Pacific region, suggesting other nations may be waging disinformation campaigns of concern, including the Russian Federation and the Democratic People’s Republic of Korea.
  • Russia’s GRU Hackers Hit US Government and Energy Targets” – WIRED. Starting in December 2018, APT28 (aka Fancy Bear), a Russian hacking group, targeted and penetrated a number of United States (US) entities, including federal and state governments, educational institutions, and energy companies. APT28 is closely associated with Glavnoye razvedyvatel’noye upravleniye (GRU), the Main Directorate of the General Staff of the Armed Forces of the Russian Federation and is the entity behind the takedowns of Ukraine’s electrical grid in 2015 and 2016 among other high profile hacks and attacks. The timing of these attacks, sometimes executed as phishing attacks, is interesting for it comes after US Cyber Command and possibly the Central Intelligence Agency (CIA) took down Russia’s Internet Research Agency and other actions designed to deter Russian interference in the 2019 mid-term elections in November 2018.
  • “Hurting People  At Scale” – Facebook’s Employees Reckon With The Social Network They’ve Built” – BuzzFeed News. This article documents the dissent and turmoil inside the company about content moderation, which some see the social media giant doing dismally. Some employees and ex-employees are taking issue with how CEO Mark Zuckerberg and his leadership are acting or not to take down extreme and violent content.
  • Big Tech Funds a Think Tank Pushing for Fewer Rules. For Big Tech.” – The New York Times. The Global Antitrust Institute at George Mason University’s Antonin Scalia Law School has been pushing for less regulation of antitrust statutes and regulations, especially in “educating” antitrust officials at conferences. It has also been financially supported by large technology companies which benefit from these policies and has not been transparent about its funding or the extent to which these companies’ positions on antitrust inform its efforts and output. A similar New York Times investigation into other Washington DC think tanks exposed the transactional nature of some of these institutions, donors, and positions.

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2020. 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.

House Starts Consideration of Its NDAA

The House will consider scores of amendments to change US technology policy, including a number of implement the recommendations of a congressional cybersecurity panel. However, some may not be in the final NDAA.

First things first, if you would like to receive my Technology Policy Update, email me. You can find some of these Updates from 2019 and 2020 here.

As is almost always the case, House Members are using the occasion of the annual consideration of the National Defense Authorization Act (NDAA) to offer a range of amendments to the House Rules Committee. Hundreds of amendments were submitted, and at the 17 July hearing, the Committee determined which would be made in order and allow to be debated on the House floor, including scores of technology amendments. Many of these amendments to the “William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021” (H.R.6395) would change US technology policy and funding, and some are complete bills the House has already passed, for inclusion in the NDAA increases the chances of enactment. Among the higher profile amendments made in order is one offered by Cyberspace Solarium Commission members that would establish a National Cyber Director position in the White House that the Senate declined to include in its FY 2021 NDAA, suggesting addition to the House’s bill does not necessarily this provision will make it into law.

Earlier today, the House began its consideration of H.R.6395, which may take up the better part of the week. The House Rules Committee made the following amendments in order to be offered during debate that pertain to technology:

The House Armed Services Committee has also released its Committee Report in two parts (Volume I and II) and detailed the overall funding authorized by the package:

H.R. 6395 supports an overall authorization of $740.5 billion dollars for our national defense. H.R. 6395 would authorize approximately $662.6 billion in discretionary spending for national defense and approximately $69.0 billion in discretionary spending for Over-seas Contingency Operations. This authorization level will allow our military to maintain readiness, expand capabilities, and invest in the new software and technologies required to secure our country.

The committee included a number of requests and directives of the DOD and other agencies, including but not limited to:

  • Report on Cybersecurity Maturity Model Certification
    • The committee acknowledges that the Department of Defense has taken initial steps to ensure that its contractors are aware of the actions necessary to protect the government’s data and networks from cybersecurity threats. However, the committee is concerned that there remain key unanswered questions about how it will implement its cybersecurity framework, especially given the level of collaboration necessary between industry and government for its success. Therefore, the committee directs the Under Secretary of Defense for Acquisition and Sustainment to submit a report to the congressional defense committees by January 15, 2021, regarding the Cybersecurity Maturity Model Certification (CMMC) program.
  • Report on Ties between Russia and China
    • The Department of Defense has acknowledged that China and Russia are increasingly working in cooperation on a wide range of matters, including economically, politically, and militarily; and that the Department believes the growing ties between Russia and China are challenging the rules-based order and present a threat to U.S. national security interests. The committee notes that the National Defense Strategy highlights the joint force’s eroding competitive edge against China and Russia. The committee endeavors to fully understand the extent of the ties between Russia and China. Therefore, the committee directs the Director of National Intelligence, in consultation with the Secretary of Defense, to submit a report to the congressional defense committees and the congressional intelligence committees by March 1, 2021, on the relationship between China and Russia.
  • Fourth Estate Network Optimization
    • The committee recognizes the importance of creating efficiencies and cost savings within the Fourth Estate and across the Department of Defense, to include the consolidation of information technology services away from legacy common use information technology services into a single service provider (SSP). The committee notes that on August 15, 2019 the Deputy Secretary of Defense directed the Defense Information Systems Agency (DISA) to execute such consolidation under the Fourth Estate Network Optimization (4ENO) effort over the period of fiscal year 2020 to fiscal year 2024. The committee directs the Secretary of Defense to provide a report to the congressional defense committees not later than February 1, 2021, on the status of the consolidation effort, including details on the schedule and plan for consolidation, progress on the transition of each Defense Agency and Field Activity (DAFA) from common use information technology services into the SSP environment, the list of assets and services being transitioned, a list of assets and services remaining within each DAFA, a justification for assets not transitioned, and the reallocation of funding as a result of the transition.
  • GAO Assessment on DOD Cyber Incident Management Efforts
    • The committee notes that the Department of Defense (DOD) has experienced a number of high-profile breaches to Department of Defense (DOD) systems and networks. For example, in July 2015, a phishing attack on the Joint Chiefs of Staff unclassified email servers resulted in the system being shut down for more than a week while cyber experts rebuilt the network, affecting the work of roughly 4,000 military and civilian personnel. In 2018, DOD disclosed a data breach to its contracted travel management system that allegedly affected approximately 30,000 military and civilian employees. In 2020, DOD similarly acknowledged that the Defense Information Systems Agency networks were breached that reportedly resulted in the personal data of approximately 200,000 network users being compromised.
    • The committee is concerned that while DOD established the Joint Force Headquarters–DOD Information Network (JFHQ– DODIN) to operationalize and defend DOD systems and networks, other DOD components still view these systems and networks as an administrative capability. Cyber incidents, such as those identified above, can disrupt critical military operations, lead to inappropriate access to and modification of sensitive information, result in long-term financial obligations for credit monitoring, and threaten national security. Therefore, the committee directs the Comptroller General of the United States to provide the congressional defense committees with an assessment of DOD management of cyber incidents and efforts to mitigate future cyber incidents.
  • GAO Study and Report on Electronic Continuity of Operations on the Department of Defense
    • The committee notes the centrality of electronic command, control, and communications to Department of Defense continuity of operations. To ensure that the committee is fully informed of how the Department of Defense is addressing issues related to the risk to electronic communications, the committee requests that the Comptroller General of the United States conduct a study of electronic communications continuity of operations of the Department of Defense.
  • Information Technology Asset Management and Inventory
    • The committee commends the Department of Defense for the considerable improvement made on information technology, asset discovery, and asset management. However, the committee believes the Department would benefit from an established process for auditing software and hardware inventories. The lack of a single policy framework hinders the capacity of the Department to discover license duplication and the Department is at risk of wasting valuable resources on redundant or underutilized hardware and software. The Department also lacks real-time discovery of and visibility over its network attack surface, particularly its forward-facing internet assets and Department assets held in cloud environments, resulting in increased risk of exposures exploitable by malicious adversaries. The private sector has successfully navigated this challenge through the use of automated software tools widely available on the commercial market.
    • The committee directs the Chief Information Officer of the Department of Defense, in coordination with chief information officers of the military services, to provide a briefing to the House Committee on Armed Services, not later than March 1, 2021, on the processes in place for asset discovery and management of hardware and software products.
  • Internet Architecture Security
    • The committee recognizes that the internet is inextricable and central to the American way of life, and the architecture that enables internet communications is layered, complex, and multi-faceted. The committee notes that this architecture includes high-capacity cables laid underground and underseas, cable landing stations that connect cables from continent to continent, and internet exchange points that serve as clearinghouses for data between Internet Service Providers and content delivery networks; all of which are required for the internet to operate. The committee recognizes that the executive branch has assigned responsibility for components or sectors of critical infrastructure to various executive branch departments and agencies, and internet architecture is approached in a fractured and piecemeal fashion, with multiple government stakeholder entities claiming responsibility. The committee is concerned that the lack of direction on the subject of internet architecture security creates significant risks to the nation. Consequently, the committee directs the Comptroller General of the United States to provide a report to the House Committee on Armed Services by September 1, 2021, to examine the issue of internet architecture security.
  • Report and GAO Briefing on DOD Cyber Hygiene and Cybersecurity Maturity Model Certification Framework
    • Given the importance of implementing cyber hygiene practices that could effectively protect DOD missions, information, and systems and networks, we direct the Secretary of Defense to submit a report to the defense committees identifying the extent to which each of the DOD components have implemented cyber hygiene practices and levels identified in the CMMC framework. For each DOD component that does not achieve level 3 status (referred to as ‘‘good cyber hygiene’’ in CMMC Model ver. 1.02), the head of the component is to provide the Congressional defense committees, the DOD Chief Information Officer, the commander of JFHQ–DODIN a plan on how the component will implement those security measures within one year and mitigate potential consequences until those practices are implemented. In order to aid in the under-standing of what cyber hygiene practices have been and have not been implemented by the DOD that the department requires private sector companies to implement before they receive a contract where they would have access to controlled unclassified information, the Secretary of Defense shall submit the DOD report to the Congressional defense committees and the Comptroller General of the United States by March 1, 2021. The committee further directs the Comptroller General to conduct an independent review of the Secretary’s report and provide a briefing to the Congressional defense committees no later than the end of the fiscal year.
  • Department of Defense Artificial Intelligence Capabilities and Strategy
    • The committee believes that global leadership in artificial intelligence (AI) technology is a national security priority. In 2018, the Department of Defense issued a department-wide AI strategy to provide direction for AI development. As the Department increases its investments in AI, machine learning, and other automation technologies, the committee believes that the Department’s re-sources, capabilities, and plans should continue to ensure U.S. competitive advantage over potential adversaries. Therefore, the committee directs the Comptroller General of the United States to provide the committee with an assessment of the Department’s resources, capabilities, and plans for AI.

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2020. 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.

Image by David Mark from Pixabay

House Hearing On CSC Recommendations

On the same day another committee was considering amendments to the FY 2021 NDAA, a committee looked at recommendations to change US cyber policy

First things first, if you would like to receive my Technology Policy Update, email me. You can find some of these Updates from 2019 and 2020 here.

One of the committees with jurisdiction over a number of the recommendations made by the Cyberspace Solarium Commission (CSC) held a virtual hearing to examine some of the panel’s policy and statutory suggestions to improve the cybersecurity of the United States. The hearing was chaired by one of the CSC members and all four witnesses were on the CSC. Those facts taken together with the timing of the hearing (i.e. right before the House is set to amendments embodying the CSC recommendations to the “William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021” (H.R.6395)) suggested the audience is House Democratic leadership, Senate Republican leadership, the Senate Armed Services Committee, and other stakeholders.

The House Homeland Security Committee’s Cybersecurity, Infrastructure Protection, & Innovation Subcommittee held a virtual hearing on 17 July titled “Cyberspace Solarium Commission Recommendations” with the following witnesses:

  • Senator Angus King (I-ME), Co-Chair, Cyberspace Solarium Commission
  • Representative Michael Gallagher (R-WI), Co-Chair, Cyberspace Solarium Commission
  • Hon. Suzanne Spaulding, Commissioner, Cyberspace Solarium Commission
  • Ms. Samantha Ravich, Ph.D., Commissioner, Cyberspace Solarium Commission

Consequently, given the subcommittee’s jurisdiction over the Department of Homeland Security (DHS) and the Cybersecurity and Infrastructure Security Agency (CISA), and the latter’s responsibility for helping non-defense civilian agencies secure their networks and systems, the subcommittee spent a fair amount of time discussing how to improve both entities.

Representative James Langevin (D-RI) chaired the hearing even though Representative Cedric Richmond (D-LA) is chair of the subcommittee. As mentioned, Langevin served on the CSC and has offered a number of amendments to be debated when the House considers the FY 2021 NDAA this week. In his opening statement, Langevin asserted

  • The realities of 2020 make clear that a comprehensive, whole-of-nation approach to cybersecurity is a necessity, but we do not yet have one. We lack a clear leader in the White House whose mission it is to focus on cybersecurity. We lack clear understanding of roles and responsibilities, both within government and between government and the private sector. We lack clear metrics to measure our progress.
  • The Cyberspace Solarium Commission report cannot fix all the challenges we have in cyberspace. But it does chart a bold course, and it does not shy away from the tradeoffs we will need to make to decisively improve our cybersecurity posture. The report makes clear that everyone – from government to private sector companies to Congress itself –needs to make meaningful changes.
  • We need to expect more from government: closer coordination across agencies, stronger collaboration with critical infrastructure, and, critically, a greater emphasis on planning. And we need to strengthen government agencies – in particular CISA – to do so.
  • We also need to expect more from the private sector. We need companies to truly accept the risks they take in cyberspace by accepting the consequences of failing to protect their data and networks.
  • We also need technology companies – what the report calls “cybersecurity enablers” – to do more to make the secure choice the default choice. Too often, we see a rush to be first to market, not secure to market. Too often, we see entities like ISPs not protecting their small and medium sized customers because they don’t believe it’s their job.
  • Most importantly, where the public and private intersect, at the nexus of critical infrastructure that this committee is charged with protecting, we need to ensure the private sector is doing its part to protect itself while acknowledging that they can’t go it alone.

Ranking Member John Katko (R-NY)

  • The recommendations I am most interested in hearing about today are, strengthening the Cybersecurity and Infrastructure Security Agency (CISA) and its workforce, evaluating CISA’s facilities needs, strengthening the CISA Director position and making the Assistant Directors career, the National Cyber Director, authorizing CISA to threat hunt on the .gov domain, securing email, developing a strategy to secure email, and modernizing the digital infrastructure of state and local governments and small and mid-sized businesses.
  • As Ranking Member on the Cybersecurity, Infrastructure Protection, and Innovation Subcommittee, my top priority among the Commission’s recommendations is strengthening and clarifying the CISA’s authority and vastly increasing its funding to allow it to carry out its role as the Nation’s risk manager coordinating the protection of critical infrastructure and federal agencies and departments from cyber threats.  I introduced this recommendation as a bill, which requires CISA to assess what additional resources are necessary to fulfill its mission.  This assessment should examine CISA’s workforce composition and future demands and report to Congress on the findings.
  • Under the bill, CISA would also evaluate its current facilities and future needs including accommodating integration of personnel, critical infrastructure partners, and other department and agency personnel and make recommendations to the General Services Administration (GSA).  GSA must evaluate CISA’s recommendations and report to Congress within 30 days on how best to accommodate CISA’s mission and goals with commensurate facilities.  The facilities evaluation dovetails with the Commission’s recommendation for an integrated cyber center within CISA.
  • I reintroduced my bill elevating and strengthening the CISA Director position to reflect the significance of the role, making the position the equivalent of an Assistant Secretary or military service secretary.  My bill limits the term of the CISA Director to 2, 5-year terms, which ensures the agency has stable leadership. It also depoliticizes the Assistant Director positions by making them a career.
  • A related legislative proposal that I am working with colleagues to pass, clarifies CISA’s authority to conduct continuous threat hunting across the .gov domain.  This will increase CISA’s ability to protect federal networks and allow CISA to provide relevant threat information to critical infrastructure.
  • Finally, the recommendation to establish a National Cyber Director within the White House is another legislative proposal I am cosponsoring.  This Presidentially-nominated and Senate-confirmed National Cyber Director would be the principle cybersecurity advisor of the President, tasked with developing, counseling the President on, and supervising the implementation of a National Cyber Strategy. This leadership will bring focus to our Nation’s cybersecurity as a top strategic priority.

Committee Chair Bennie Thompson (D-MS) explained

  • Although there are many well-intentioned, capable people working hard to advance sound cybersecurity policy throughout the executive branch, the lack of consistent leadership from the White House has stunted progress. Over two years ago, for example, the White House green-lighted the elimination of its Cyber Security Coordinator. The result is a lack of effective coordination among Federal agencies who compete for cybersecurity authorities, responsibilities, and associated budgets – and Federal agencies approaching Congress with conflicting priorities. The time has come for that to stop.
  • Toward that end, I appreciate and support the Commission’s recommendation that Congress establish a National Cyber Director. I understand Congressman Langevin has authored legislation to implement that recommendation and has also submitted it as an amendment to the NDAA. I fully support both efforts.
  • I similarly appreciate the Commission’s recommendations regarding strengthening the Cybersecurity and Infrastructure Security Agency and more clearly defining the roles and responsibilities of CISA and sector risk management agencies. Right-sizing CISA’s budget and equipping it with the authorities necessary to carry out its mission to secure Federal networks, while also supporting critical infrastructure, has been a bipartisan priority of Committee Members.
  • I am particularly interested in hearing Ms. Spaulding’s thoughts on these recommendations given her perspective as the former Under Secretary of the National Protection and Programs Directorate.
  • Additionally, I am interested in discussing Commission recommendations related to implementing a “carrot and stick” approach to encourage private sector collaboration with the Federal government’s cybersecurity and defense efforts, particularly the proposed codification of “systemically important critical infrastructure.”
  • Finally, I would be remiss if I did not address the Commission’s observation that Congress’ fractured jurisdiction over cybersecurity frustrates efforts to achieve a comprehensive, cohesive approach to cybersecurity. I agree. And while I disagree with the Commission’s recommendation on that point, rest assured that I am working to address the underlying problem.

In a joint statement, CSC Members

  • Ultimately, the Commission developed a strategic approach of “layered cyber deterrence” with the objectives of actively shaping behavior in cyberspace, denying benefits to adversaries who exploit this domain, and imposing real costs against those who target America’s economic and democratic institutions in and through cyberspace. Our critical infrastructure–the systems, assets, and entities that underpin our national security, economic security, and public health and safety—are increasingly threatened by malicious cyber actors. Effective critical infrastructure security and resilience requires reducing the consequences of disruption, minimizing vulnerability, and disrupting adversary operations that seek to hold our assets at risk. We believe the future of the U.S. economy and our national security requires both the executive branch and Congress work in tandem to prioritize and grant the following recommendations.
    • First and foremost, the Commission found that the federal government lacks consistent and institutionalized leadership, as well as a cohesive, clear strategic vision on cybersecurity. As a result, we recommend that Congress establish a National Cyber Director in the Executive Office of the President to centralize and coordinate the cybersecurity mission at the national level. The National Cyber Director would work with federal departments and agencies to bring coherence in the development of cybersecurity policy and strategy and in its execution. The position would provide clear leadership in the White House and signal cybersecurity as an enduring priority in U.S. national security strategy.
    • Second, the government must continue to improve the resourcing, authorities, and organization of the Cybersecurity and Infrastructure Security Agency (CISA) in its role as the primary federal agency responsible for critical infrastructure protection, security, and resilience. We recommend empowering CISA with tools to strengthen public-private partnership. Of particular value would be the authorities needed to aid in responding to attempted attacks on critical infrastructure from a variety of actors ranging from nation-states to criminals. Currently, the U.S. government’s authorities are limited exclusively to certain criminal contexts, where evidence of a compromise exists, and do not address instances in which critical infrastructure systems are vulnerable to a cyberattack. To address this gap, Congress should grant CISA subpoena authority in support of their threat and asset response activities, while ensuring appropriate liability protections for cooperating private-sector network owners.
    • Third, elements of the U.S. government and the private sector often lack the tools necessary for successful collaboration to counter and mitigate a malicious nation-state cyber campaign. To address this shortcoming, the executive branch should establish a Joint Cyber Planning Office under CISA to coordinate cybersecurity planning and readiness across the federal government and between the public and private sectors for significant cyber incidents and malicious cyber campaigns. Within a similar vein, Congress should also direct the U.S. government to plan and execute a national-level cyber table-top exercise on a biennial basis that involves senior leaders from the executive branch, Congress, state governments, and the private sector, as well as international partners, to build muscle memory for key decision makers and develop new solutions and strengthen our collective defense.
    • Fourth, the United States must take immediate steps to ensure our critical infrastructure sectors can withstand and quickly respond to and recover from a significant cyber incident. Resilience against such attacks is critical in reducing benefits that our adversaries can expect from their operations–whether disruption, intellectual property theft, or espionage. Congress should direct the executive branch to develop a Continuity of the Economy Plan. This plan should include the federal government, SLTT entities and private stakeholders who can collectively identify the resources and authorities needed to rapidly restart our economy after a major disruption. In addition, the Commission recommends establishing a Cyber State of Distress tied to a Cyber Response and Recovery Fund , giving the government greater flexibility to scale up and augment its own capacity to aid the private sector when a significant cyber incident occurs. These changes will ensure the infrastructure that supports our most critical national functions can continue to operate amidst disruption or crisis.
    • Fifth, the Commission recommends two relevant initiatives to reshape the cyber ecosystem toward greater security for all Americans. The first, the creation of a National Cybersecurity Certification and Labeling Authority, would help create standards and transparency that will allow consumers of technology products and services to use the power of their purses over time to demand more security and less vulnerability in the technologies they buy. Furthermore, Congress should appropriate funds to the Department of Homeland Security (DHS), in partnership with the Department of Energy, Office of the Director of National Intelligence (ODNI), and the Department of Defense (DoD), to competitively select, designate, and fund up to three Critical Technology Security Centers in order to centralize efforts directed towards evaluating and testing security of devices and technologies that underpin our networks and critical infrastructure.
    • Sixth, the U.S. Intelligence Community is not currently resourced or aligned to adequately support the private sector in cyber defense and security. While the intelligence community is formidable in informing security operations in instances when the U.S. government is the defender, its policies and procedures are not aligned to intelligence collection on behalf of private entities, which constitutes around 85% of our critical infrastructure. To that end, Congress should direct the executive branch to conduct a six-month comprehensive review of intelligence policies, procedures, and resources to identify and address key limitations in order to improve the intelligence community’s ability to provide intelligence support to the private sector.

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2020. 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.

Photo by ThisIsEngineering from Pexels

House Appropriations Committee Passes Bills With Funding For and Directives To Technology Agencies

Four bills full of technology funding and programmatic direction are reported to the House.

First things first, if you would like to receive my Technology Policy Update, email me. You can find some of these Updates from 2019 and 2020 here.

The House Appropriations Committee finished work on four of the FY 2021 appropriations bills that fund a substantial portion of the United States’ (US) government’s technology programs and activities. Often appropriations bills are the primary vehicle by which Congress changes executive branch policy through the use of its funding powers, and so the bills and their committee reports contain a range of directives and instructions year-to-year. The House is set to finish committee consideration of all 12 bills this month, but there is no indication as to when the Senate Appropriations Committee will take up its bills. Given the late start on appropriations, it is all but certain the federal government will be operating under a stopgap funding bill for some portion of the first quarter of the next fiscal year. The outcome of the election could result in a further postponing of full appropriations and delaying of passage of technology funding and program changes.

FY 2021 Homeland Security Appropriations Act

In advance of the 15 July markup, the House Appropriations Committee made available its Committee Report to accompany the FY 2021 Homeland Security Appropriations Act.

The package includes $2.6 million for a Joint Cybersecurity Coordination Group (JCCG) inside DHS “serve as a coordinating entity that will help the Department identify strategic priorities and synchronize cyber-related activities across the operational components.” This new entity comes about because the Trump Administration requested its creation as part of its FY 2021 budget request. The Committee expressed disappointment with “the lack of quality and detail provided in CISA’s fiscal year 2021 budget justification documents, to include several errors and unjustified adjustments that appear to be attributable to CISA’s premature proposal for a new Program, Project, or Activity (PPA) structure and raise questions about whether the budget could be executed as requested.” Consequently, the Committee directed that CISA “submit the fiscal year 2022 budget request at the same level of PPA detail as provided in the table at the end of this report with no further adjustments to the PPA structure.”

Among other programmatic and funding highlights, the Committee

  • “[E]ncourage[d] CISA to continue to use commercial, human-led threat behavioral analysis and technology, and to employ private sector, industry-specific, threat intelligence and best practices to better characterize potential consequences to critical infrastructure sectors during a systemic cyber event.”
  • Urged “CISA and the Election Infrastructure Information Sharing and Analysis Center (EI–ISAC) to expand outreach to the most vulnerable jurisdictions” with respect to election security assistance.
  • Directed “CISA to continue providing the semiannual briefing on the National Cybersecurity Protection System (NCPS) program and the Continuous Diagnostics and Mitigation (CDM)”
  • Pointed to $5.8 million to set up a ‘‘central Federal information security incident center,’ a requirement mandated by the Federal Information Security Modernization Act (FISMA) (P.L. 113-283) and $9.3 million “to establish a formal program office to coordinate supply chain risk management efforts for federal civilian agencies; act as the executive agent for the Federal Acquisition Security Council (FASC), as authorized by the SECURE Technology Act, 2018 (Public Law 115– 390); and fund various supply chain related efforts and services.”
  • Emphasized its increase of $6 million as compared to FY 2020 “to grow CISA’s threat hunting capabilities” “[i]n the face of cyber threats from nation-state adversaries such as Russia, China, Iran, and North Korea.”
  • [P]rovide[d] an increase of $11,568,000 above the request to establish a Joint Cyber Center (JCC) for National Cyber Defense to bring together federal and State, Local, Tribal, and Territorial (SLTT) governments, industry, and international partners to strategically and operationally counter nation-state cyber threats.”
  • Bestowed “an increase of $10,022,000 above the request for the underlying infrastructure that enables better identification, analysis, and publication of known vulnerabilities and common attack patterns, including through the National Vulnerability Database, and to expand the coordinated responsible disclosure of vulnerabilities.”
  • Noted “[t]hrough the Shared Cybersecurity Services Office (SCSO), CISA serves as the Quality Services Management Office for federal cybersecurity” and explained “[t]o help improve efforts to make strategic cybersecurity services available to federal agencies, the Committee includes $5,064,000 above the request to sustain prior year investments and an additional $5,000,000 to continue to expand the office.”
  • Expressed its concern “about cyber vulnerabilities within supply chains, which pose unacceptable risks to the nation’s physical and cyber infrastructure and, therefore, to national security” and provided “an increase of $18,005,000 above the request to continue the development of capabilities to address these risks through the ICT Supply Chain Risk Management Task Force and other stakeholders, such as the FASC.”

FY 2021 Financial Services and General Government Appropriations Act

The FY 2021 Financial Services and General Government Appropriations Act has a provision that would bar either the Federal Trade Commission (FTC) or Federal Communications Commission (FCC) from taking certain actions related to Executive Order 13925, “Preventing Online Censorship” issued in May by the White House after Twitter fact checked a pair of President Donald Trump’s Tweets that contained untruthful claims about voting by mail. It is very unlikely Senate Republicans, some of whom have publicly supported this Executive Order will allow this language into the final bill funding the agencies.

Under the Executive Order, the National Telecommunications and Information Administration (NTIA) is to file a petition for rulemaking with the FCC to clarify the interplay between clauses of 47 USC 230, notably whether the liability shield that protects companies like Twitter and Facebook for content posted on an online platform also extends to so-called “editorial decisions,” presumably actions like Twitter’s in fact checking Trump regarding mail balloting. The NTIA would also ask the FCC to define better the conditions under which an online platform may take down content in good faith that are “deceptive, pretextual, or inconsistent with a provider’s terms of service; or taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard.” The NTIA is also ask the FCC to promulgate any other regulations necessary to effectuate the EO. The FTC was directed consider whether online platforms are violating Section 5 of the FTC Act barring unfair or deceptive practices, which “may include practices by entities covered by section 230 that restrict speech in ways that do not align with those entities’ public representations about those practices.”

In the Committee Report for the FY 2021 Financial Services and General Government Appropriations Act, the House Appropriations Committee explained it provided $341 million for the FTC, “a $10,000,000 increase over fiscal year 2020… will increase the FTC’s capabilities both to monitor mergers and acquisitions that could reduce competition or lead to higher prices, and to take enforcement action against companies that fail to take reasonable steps to secure their customer data or that engage in other problematic trade practices.”

The Committee detailed the following program and funding provisions related to the FTC, including combatting fraudulent calls to seniors, robocalls, fraudulent health care calls, and the following:

  • Cryptocurrency.— The Committee encourages the FTC to work with the Securities and Exchange Commission, other financial regulators, consumer groups, law enforcement, and other public and private stakeholders to identify and investigate fraud related to cryptocurrencies market and discuss methods to empower and protect consumers.”
  • Consumer Repair Rights.—The Committee is aware of the FTC’s ongoing review of how manufacturers—in particular mobile phone and car manufacturers—may limit repairs by consumers and repair shops, and how those limitations may increase costs, limit choice, and impact consumers’ rights under the Magnuson-Moss Warranty Act. Not later than 120 days after the enactment of this Act, the FTC is directed to provide to the Committee, and to publish online, a report on anticompetitive practices related to repair markets. The report shall provide recommendations on how to best address these problems.
  • Antitrust Actions.—The Committee directs the GAO to study FTC and DOJ antitrust actions over the past 25 years. The study shall examine the following questions: How many instances have FTC and DOJ been on opposing sides of the same matter? In how many of these instances was the split created by (a) the FTC intervening in DOJ’s case; and (b) the DOJ intervening in FTC’s case? In these instances, how (if at all) did the split affect the final outcome (e.g., did the judicial opinion cite the split or explain how it affected the court’s decision)? In how many instances has an FTC action appeared before the Supreme Court? Of these instances, in how many cases did the FTC represent itself (rather than be represented by the Solicitor General)? In how many instances has the DOJ or FTC reneged on a clearance agreement with the other agency? In how many of these instances was the disruption created by (a) the FTC’s decision to renege on the agreement; and (b) the DOJ’s decision to renege on the agreement? How many amicus briefs did each agency file in each year? How many of the total amicus briefs filed by DOJ were done so at the invitation of the court? How many of the total amicus briefs filed by FTC were done so at the invitation of the court?

With respect to the FCC, the package provides $376 million and requires a host of programmatic responses, including:

  • Broadband Maps.—The Committee provides significant funding for upfront costs associated with implementation of the Broadband DATA Act. The Committee anticipates funding related to the Broadband DATA Act will decline considerably in future years and expects the FCC to repurpose a significant amount of staff currently working on economic, wireline, and wireless issues to focus on broadband mapping.
  • Broadband Access.—The Committee believes that deployment of broadband in rural and economically disadvantaged areas is a driver of economic development, jobs, and new educational opportunities. The Committee supports FCC efforts to judiciously allocate Universal Service Fund (USF) funds for these areas.
  • Rural Digital Opportunity Fund.—The Committee appreciates the significant investment the FCC is planning to make to deploy broadband services to unserved areas. The Committee recognizes the need for government programs to minimize instances in which two different providers receive support from two different programs to serve the same location. However, the Committee is concerned that current program rules may have the unintended consequence of discouraging other funding sources from participating in broadband deployment, particularly State-based programs. The Committee directs the FCC to adjust program rules to ensure applicants, and the States in which those applicants would deploy broadband, are not put at a disadvantage when applying for the Rural Digital Opportunity Fund based on the State’s proactive, independent investment in broadband.
  • Lifeline Service.—The Committee is concerned that changes to the Lifeline minimum service standards and support levels will adversely impact low-income Americans, including many suffering from economic hardships due to the coronavirus. The Committee directs the FCC to pause implementation of any changes to the currently applicable minimum service standards for Lifeline-supported mobile broadband service and any changes in the current levels of Lifeline support for voice services until the FCC has completed the State of the Lifeline Marketplace Report required by the 2016 Lifeline Order…
  • Mid-Band Spectrum.—The Committee believes that Fifth-Generation (5G) mobile technology is critical to U.S. national and economic security. A key component of the U.S. strategy for 5G is ensuring that U.S. wireless providers have enough mid-band spectrum (frequencies between 3 GHz and 24 GHz), which provides fast data connections while also traveling longer distances. The Committee is concerned that the U.S. is falling behind other countries in the allocation of such spectrum. The Committee urges the Administration and the FCC to work expeditiously to identify and make available more mid-band spectrum for 5G so that the U.S. does not fall further in the race to deploy 5G networks and services.
  • 5G Supply Chain.—The Committee understands the importance of a secure 5G technology supply chain. The Committee encourages the FCC to investigate options for increasing supply chain diversity, competition, and network security via interoperable technologies and open standard-based interfaces.

The Committee had a range of mandates for the Office of Management and Budget (OMB):

  • Federal and Critical Infrastructure Cybersecurity.—The Committee is aware that Federal agencies and the nation’s critical infrastructure face unique cybersecurity threats. Executive Order 13800, issued on May 11, 2017, directs agency heads to implement several risk management and cybersecurity measures, including the National Institute of Standards and Technology Framework for Improving Critical Infrastructure Cybersecurity. OMB is directed to report, within 90 days of enactment of this Act, on the status of compliance with Executive Order 13800 by each applicable agency. The report shall identify risk management and cybersecurity compliance gaps and outline the steps each agency needs to take to manage such risks. OMB shall prioritize working with the applicable agency heads to address remaining gaps and inconsistencies.
  • Federal Information Technology Workforce.—OMB is directed to consult with the Office of Personnel Management and the General Services Administration and report to the Committee, no later than September 30, 2021, on gaps in Federal information technology workforce skills, disciplines, and experience required to enable the Federal government to modernize its ability to use technology and develop effective citizen-facing digital services to carry out its mission.

The Committee noted its additional funding to the Election Assistance Commission (EAC) for Election Security Grants of $500 million:

  • [T]he Coronavirus Aid, Relief, and Economic Security Act (CARES Act) (P.L. 116–136) included $400,000,000 for grants to States to prevent, prepare for, and respond to coronavirus. The Committee is gravely concerned by persistent threats from Russia and other foreign actors attempting to influence the U.S. democratic process, and vulnerabilities that continue to exist throughout the Nation’s election system.
  • Since fiscal year 2018, Congress has provided $805,000,000 in grants to States to improve the security of elections for Federal office.
  • However, that funding has been inconsistent, unpredictable, and insufficient to meet the vast need across all the States and territories.
  • Congress must provide a consistent, steady source of Federal funds to support State and local election officials on the frontlines of protecting U.S. elections. The bill requires States to use payments to replace direct-recording electronic (DRE) voting machines with voting systems that require the use of an individual, durable, voter-verified paper ballot, marked by the voter by hand or through the use of a non-tabulating ballot marking device or system, and made available for inspection and verification by the voter before the vote is cast and counted.
  • Funds shall only be available to a State or local election jurisdiction for further election security improvements after a State has submitted a certification to the EAC that all DRE voting machines have been or are in the process of being replaced. Funds shall be available to States for the following activities to improve the security of elections for Federal office:
    • implementing a post-election, risk-limiting audit system that provides a high level of confidence in the accuracy of the final vote tally;
    • maintaining or upgrading election-related computer systems, including voter registration systems, to address cyber vulnerabilities identified through DHS scans or similar assessments of existing election systems;
    • facilitating cyber and risk mitigation training for State and local election officials;
    • implementing established cybersecurity best practices for election systems; and other priority activities and
    • investments identified by the EAC, in consultation with DHS, to improve election security.
  • The EAC shall define in the Notice of Grant Award the eligible investments and activities for which grant funds may be used by the States. The EAC shall review all proposed investments to ensure funds are used for the purposes set forth in the Notice of Grant Award.
  • The bill also requires that not less than 50 percent of the payment made to a State be allocated in cash or in kind to local government entities responsible for the administration of elections for Federal office.

Regarding the General Services Administration (GSA), the Committee directed the following:

  • Interagency Task Force on Health and Human Services Information Technology (IT).— The Committee urges the Chief Information Office and Chief Technology Officer (CTO) of HHS, in collaboration with the White House CTO and U.S. Department of Agriculture (USDA), as well as the Office of the National Coordinator for Health Information Technology (ONC) within HHS, 18F within the GSA, and the Cybersecurity and Infrastructure security Agency (CISA) within the U.S. Department of Homeland Security, to establish an interagency task force that will examine existing IT infrastructure in Federal health human service programs nationwide and identify the limitations to successfully integrating and modernizing health and human services IT, and the network security necessary for health and human services IT interoperability. The task force shall submit to the Committee within 180 days of enactment on this Act a report on its progress and on recommendations for further Congressional action, which should include estimated costs for agencies to make progress on interoperability initiatives.
  • Category Management.—The Committee is interested in understanding the effects of GSA’s category management policy on contracts with small businesses. Category management refers to the business practice of buying common goods and services as an enterprise to eliminate redundancies, increase efficiency, and deliver more value and savings from the Federal government’s acquisition programs. Within 180 days of the enactment of this Act, the Committee directs GSA, in cooperation with SBA, to submit a report to the Committee on the number of contracts that could have been awarded under sections 8(a), 8(m), 15(a), 15(j), 31, or 36 of the Small Business Act, but were exempted by category management since its implementation.

The Committee made the following recommendations generally:

  • Cyberspace Solarium Commission Recommendations.—The Committee recognizes and supports the priorities and recommendations laid out in the Cyberspace Solarium Commission’s report and urges Federal departments and agencies to align cybersecurity budgetary priorities with those laid out by the Commission. In particular, the Committee calls attention to recommendation 3.2, Develop and Maintain Continuity of the Economy Planning; recommendation 4.6.3, Strengthen the Capacity of the Committee on Foreign Investment in the United States, particularly with respect to the need to train Federal bankruptcy judges; recommendation 3.4, Improve and Enhance the Funding of the Election Assistance Commission; and recommendation 3.1, Strengthen Sector-specific Agencies’ Ability to Manage Critical Infrastructure Risk, particularly with respect to the Department of the Treasury’s Office of Cybersecurity and Critical Infrastructure Protection.
  • Zero Trust Model.—The Committee is aware that the most effective cybersecurity systems are based on the zero trust model, which is designed not only to prevent cyber intrusions but to prevent cyberthieves from accessing or removing protected information. To ensure that Federal agencies achieve the highest level of security against cyberattacks in the shortest amount of time, the Committee encourages all agencies to acquire and deploy zero trust cybersecurity software that is compatible with all existing operating systems and hardware platforms used by Federal agencies. The Committee also encourages Federal agencies to acquire and utilize software compatible with all existing operating systems and hardware platforms that will enable agencies to measure or quantify their risk of a cybersecurity attack in the months ahead and the types of cyberattack the agency is most likely to experience. Upon learning the risk and type of cyberattack the agency is most likely to face, the agency shall immediately take remedial action to minimize such risk. Agencies shall include information in their fiscal year 2022 Congressional Justification to Congress on their progress in complying with this directive.

FY 2021 Department of Defense Appropriations Act

On 14 July, the House Appropriations Committee marked up and reported out the “FY 2021 Department of Defense Appropriations Act,” which would provide $695 billion for the Department of Defense (DOD), “an increase of $1,294,992,000 above the fiscal year 2020 enacted level and a decrease of $3,695,880,000 below the budget request.”

The Committee Report contained these technology-related provisions:

  • ZERO TRUST ARCHITECTURE. The Committee encourages the Secretary of Defense to implement a Zero Trust Architecture to increase its cybersecurity posture and enhance the Department’s ability to protect its systems and data.
  • DISTRIBUTED LEDGER TECHNOLOGY RESEARCH AND DEVELOPMENT. The Committee is aware that distributed ledger technologies, such as blockchain, may have potentially useful applications for the Department of Defense, which include but are not limited to distributed computing, cybersecurity, logistics, and auditing. Therefore, the Committee encourages the Under Secretary of Defense (Research and Engineering) to consider research and development to explore the use of distributed ledger technologies for defense applications.
  • ARTIFICIAL INTELLIGENCE PARTNERSHIPS. The Committee is aware of the United States-Singapore partnership focusing on applying artificial intelligence in support of humanitarian assistance and disaster relief operations, which will help first responders better serve those in disaster zones. The Committee encourages the Secretary of Defense to pursue similar partnerships with additional partners in different regions, including the Middle East.
  • CYBER EDUCATION COLLABORATIVES. The Committee remains concerned by widespread shortages in cybersecurity talent across both the public and private sector. In accordance with the recommendations of the Cyberspace Solarium Commission, the Committee encourages the Under Secretary of Defense (Research and Engineering) to direct cyber-oriented units to collaborate with local colleges and universities on research, fellowships, internships, and cooperative work experiences to expand cyber-oriented education opportunities and grow the cybersecurity workforce. The Committee also appreciates that veterans and transitioning servicemembers could serve as a valuable recruiting pool to fill gaps in the cybersecurity workforce. Accordingly, the Committee encourages the Under Secretary to prioritize collaboration with colleges and universities near military installations as well as the veteran population.
  • 5G TELECOMMUNICATIONS TECHNOLOGY. The Committee is concerned about reports that foreign manufacturers are significantly ahead of United States companies in the development and deployment of 5G telecommunications technologies, which poses a national security risk to the United States and its allies. Without a robust domestic 5G supply chain, the United States will be vulnerable to 5G systems that facilitate cyber intrusion from hostile actors. In order to secure a reliable 5G system and a domestic supply chain that meets the national security needs of the United States and its allies, the Committee encourages the Secretary of Defense to accelerate engagement with domestic industry partners that are developing 5G systems. Additionally, the Committee is aware of the significant investments being made in 5G efforts but is concerned with the level of detail provided for congressional oversight. The Committee directs the Under Secretary of Defense (Research and Engineering) to conduct quarterly execution briefings with the House and Senate Appropriations Committees beginning not later than 90 days after the enactment of this Act.
  • MILITARY INFORMATION SUPPORT OPERATIONS. Over the past decade, the bulk of activities under Military Information Support Operations (MISO) focused on countering violent extremist organizations (VEO). While VEOs remain an ongoing threat and require continued vigilance, peer and near-peer adversaries like China and Russia are using social media and other vectors to weaken domestic and international institutions and undermine United States interests. This new information environment and the difficulty of discriminating between real and fake information heightens the importance of enhancing and coordinating United States government information-related capabilities as a tool of diplomatic and military strategy.
  • The Committee recognizes the efforts and accomplishments of the United States Special Operations Command and other agencies within the executive branch to operate in the digital domain. However, it is difficult to view individual agency activities as a coordinated whole of government effort. Over the past several years, the classified annex accompanying annual Department of Defense Appropriations Acts included direction focusing on the individual activities of geographic combatant commands. However, information messaging strategies to counter Chinese and Russian malign influences cuts across these geographic boundaries and requires coordination between multiple government agencies using different authorities.
  • Therefore, in order to better understand how MISO activities support a whole of government messaging strategy, the Committee directs the Assistant Secretary of Defense (Special Operations/Low Intensity Conflict) to submit a report for MISO activities for the individual geographic combatant commands justified by the main pillars of the National Defense Strategy to the House and Senate Appropriations Committees not later than 15 days after submission of the fiscal year 2022 budget request and annually thereafter. The report shall include spend plans identifying the requested and enacted funding levels for both voice and internet activities and how those activities are coordinated with the Intelligence Community and the Department of State. The enacted levels will serve as the baseline for reprogramming in accordance with section 8007 of this Act. Furthermore, the Committee directs the Assistant Secretary of Defense (Special Operations/Low Intensity Conflict) to submit to the congressional defense committees, not later than 90 days after the end of the fiscal year, an annual report that provides details on each combatant commands’ MISO activities by activity name, description, goal or objective, target audience, dissemination means, executed funds, and assessments of their effectiveness. Additional details for the report are included in the classified annex accompanying this Act.

FY 2021 Commerce, Justice, Science Appropriations Act

Also on 14 July, the “FY 2021 Commerce, Justice, Science Appropriations Act” was also marked up and reported out and its Committee Report contains these provisions:

  • Cybersecurity Threats.—The Committee remains concerned that as the Census Bureau looks to modernize data collection methods, the Census Bureau could potentially be exploited by nefarious actors who seek to undermine the integrity of census data, which is vital to democratic institutions, and gain access to sensitive information otherwise protected by law. These threats include both hacking into the Census Bureau IT infrastructure and efforts to use supercomputing to unmask the privacy of census respondents. The Committee directs the Census Bureau to prioritize cyber protections and high standards of data differential privacy, while also maintaining the accuracy of the data, and expects the Census Bureau to update the Committee regularly on these efforts.
  • Cybersecurity and Privacy.—The proliferation of data generation, storage, and usage associated with the digital economy is making it increasingly important to protect that data with effective cryptography and privacy standards. The Committee is concerned that individual, corporate, and public-sector data privacy is continuously at risk from attacks by individual actors, criminal organization, and nation-states. The Committee urges NIST to address the rapidly emerging threats in this field by furthering the development of new and needed cryptographic standards and technologies.
  • National Initiative for Cybersecurity Education.—The Committee notes with concern the shortage of cybersecurity professionals across the government and private sector, from entry level applicants to experienced professionals. The Committee therefore supports the National Initiative for Cybersecurity Education (NICE) and directs NIST to provide resources commensurate with the prior fiscal year for this effort.
  • Cybersecurity Conformity Assessment Programs.—The Committee instructs NIST, in collaboration with other relevant organizations, to report to the Committee no later than 270 days after the enactment of this Act on challenges and approaches to establishing and managing voluntary cybersecurity conformity assessment programs for information and communication technologies including federal cloud technologies.
  • Cybersecurity Training.—Within the increase to Manufacturing Extension Partnership (MEP), the Committee directs NIST to maintain the core services of the MEP and encourages NIST to utilize existing expertise within its Information Technology Laboratory to increase cybersecurity technical training to small manufacturers to strengthen their cybersecurity capabilities given the troubling threats from state and non-state actors and other emerging threats.
  • Cybersecurity threat information sharing.—The Committee supports sharing by DOJ of cybersecurity threat warnings and intelligence with private companies who may benefit from actionable information to deter, prevent, or mitigate threats. The Committee asks DOJ to provide a briefing on this topic not later than 90 days after enactment of this Act.
  • Chinese-government affiliated companies.—The Committee is concerned with companies operating within the United States that are known to have substantial ties to the Chinese government, including full or partial ownership by the Chinese government, and that are required by Chinese law to assist in espionage activities, including collection of personally identifiable information of American citizens. Such companies may pose cybersecurity risks, such as vulnerabilities in their equipment, and some are the subject of ongoing Congressional and Executive Branch investigations involving their business practices. The Committee directs DOJ to enforce applicable laws and prevent the operation of known foreign entities who participate in the theft of American intellectual property, the harvesting of personal identifiable information on behalf of a foreign government, and the unlawful surveillance of American citizens by adversarial state-owned enterprises.

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2020. 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.

Further Reading and Other Developments (17 July)

First things first, if you would like to receive my Technology Policy Update, email me. You can find some of these Updates from 2019 and 2020 here.

Speaking of which, the Technology Policy Update is being published daily during the week, and here are the Other Developments and Further Reading from this week.

Other Developments

  • Acting Senate Intelligence Committee Chair Marco Rubio (R-FL), Senate Foreign Relations Committee Chair Jim Risch (R-ID), and Senators Chris Coons (D-DE) and John Cornyn (R-TX) wrote Secretary of Commerce Wilbur Ross and Secretary of Defense Mike Esper “to ask that the Administration take immediate measures to bring the most advanced digital semiconductor manufacturing capabilities to the United States…[which] are critical to our American economic and national security and while our nation leads in the design of semiconductors, we rely on international manufacturing for advanced semiconductor fabrication.” This letter follows the Trump Administration’s May announcement that the Taiwan Semiconductor Manufacturing Corporation (TSMC) agreed to build a $12 billion plant in Arizona. It also bears note that one of the amendments pending to the “National Defense Authorization Act for Fiscal Year 2021“ (S.4049) would establish a grants program to stimulate semiconductor manufacturing in the US.
  • Senators Mark R. Warner (D-VA), Mazie K. Hirono (D-HI) and Bob Menendez (D-NJ) sent a letter to Facebook “regarding its failure to prevent the propagation of white supremacist groups online and its role in providing such groups with the organizational infrastructure and reach needed to expand.” They also “criticized Facebook for being unable or unwilling to enforce its own Community Standards and purge white supremacist and other violent extremist content from the site” and posed “a series of questions regarding Facebook’s policies and procedures against hate speech, violence, white supremacy and the amplification of extremist content.”
  • The Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) published the Pipeline Cyber Risk Mitigation Infographic that was “[d]eveloped in coordination with the Transportation Security Administration (TSA)…[that] outlines activities that pipeline owners/operators can undertake to improve their ability to prepare for, respond to, and mitigate against malicious cyber threats.”
  • Representative Kendra Horn (D-OK) and 10 other Democrats introduced legislation “requiring the U.S. government to identify, analyze, and combat efforts by the Chinese government to exploit the COVID-19 pandemic” that was endorsed by “[t]he broader Blue Dog Coalition” according to their press release. The “Preventing China from Exploiting COVID-19 Act” (H.R.7484) “requires the Director of National Intelligence—in coordination with the Secretaries of Defense, State, and Homeland Security—to prepare an assessment of the different ways in which the Chinese government has exploited or could exploit the pandemic, which originated in China, in order to advance China’s interests and to undermine the interests of the United States, its allies, and the rules-based international order.” Horn and her cosponsors stated “[t]he assessment must be provided to Congress within 90 days and posted in unclassified form on the DNI’s website.”
  • The Supreme Court of Canada upheld the “Genetic Non-Discrimination Act” and denied a challenge to the legality of the statute brought by the government of Quebec, the Attorney General of Canada, and others. The court found:
    • The pith and substance of the challenged provisions is to protect individuals’ control over their detailed personal information disclosed by genetic tests, in the broad areas of contracting and the provision of goods and services, in order to address Canadians’ fears that their genetic test results will be used against them and to prevent discrimination based on that information. This matter is properly classified within Parliament’s power over criminal law. The provisions are supported by a criminal law purpose because they respond to a threat of harm to several overlapping public interests traditionally protected by the criminal law — autonomy, privacy, equality and public health.
  • The U.S.-China Economic and Security Review Commission published a report “analyzing the evolution of U.S. multinational enterprises (MNE) operations in China from 2000 to 2017.” The Commission found MNE’s operations in the People’s Republic of China “may indirectly erode the  United  States’  domestic industrial competitiveness  and  technological  leadership relative  to  China” and “as U.S. MNE activity in China increasingly focuses on the production of high-end technologies, the risk  that  U.S.  firms  are  unwittingly enabling China to  achieve  its industrial  policy and  military  development objectives rises.”
  • The Federal Communications Commission (FCC) and Huawei filed their final briefs in their lawsuit before the United States Court of Appeals for the Fifth Circuit arising from the FCC’s designation of Huawei as a “covered company” for purposes of a rule that denies Universal Service Funds (USF) “to purchase or obtain any equipment or services produced or provided by a covered company posing a national security threat to the integrity of communications networks or the communications supply chain.” Huawei claimed in its brief that “[t]he rulemaking and “initial designation” rest on the FCC’s national security judgments..[b]ut such judgments fall far afield of the FCC’s statutory  authority  and  competence.” Huawei also argued “[t]he USF rule, moreover, contravenes the Administrative Procedure Act (APA) and the Due Process Clause.” The FCC responded in its filing that “Huawei challenges the FCC’s decision to exclude carriers whose networks are vulnerable to foreign interference, contending that the FCC has neither statutory nor constitutional authority to make policy judgments involving “national security”…[but] [t]hese arguments are premature, as Huawei has not yet been injured by the Order.” The FCC added “Huawei’s claim that the Communications Act textually commits all policy determinations with national security implications to the President is demonstrably false.”
  • European Data Protection Supervisor (EDPS) Wojciech Wiewiórowski released his Strategy for 2020-2024, “which will focus on Digital Solidarity.” Wiewiórowski explained that “three core pillars of the EDPS strategy outline the guiding actions and objectives for the organisation to the end of 2024:
    • Foresight: The EDPS will continue to monitor legal, social and technological advances around the world and engage with experts, specialists and data protection authorities to inform its work.
    • Action: To strengthen the EDPS’ supervision, enforcement and advisory roles the EDPS will promote coherence in the activities of enforcement bodies in the EU and develop tools to assist the EU institutions, bodies and agencies to maintain the highest standards in data protection.
    • Solidarity: While promoting digital justice and privacy for all, the EDPS will also enforce responsible and sustainable data processing, to positively impact individuals and maximise societal benefits in a just and fair way.
  • Facebook released a Civil Rights Audit, an “investigation into Facebook’s policies and practices began in 2018 at the behest and encouragement of the civil rights community and some members of Congress.” Those charged with conducting the audit explained that they “vigorously advocated for more and would have liked to see the company go further to address civil rights concerns in a host of areas that are described in detail in the report” including but not limited to
    • A stronger interpretation of its voter suppression policies — an interpretation that makes those policies effective against voter suppression and prohibits content like the Trump voting posts — and more robust and more consistent enforcement of those policies leading up to the US 2020 election.
    • More visible and consistent prioritization of civil rights in company decision-making overall.
    • More resources invested to study and address organized hate against Muslims, Jews and other targeted groups on the platform.
    • A commitment to go beyond banning explicit references to white separatism and white nationalism to also prohibit express praise, support and representation of white separatism and white nationalism even where the terms themselves are not used.
    • More concrete action and specific commitments to take steps to address concerns about algorithmic bias or discrimination.
    • They added that “[t]his report outlines a number of positive and consequential steps that the company has taken, but at this point in history, the Auditors are concerned that those gains could be obscured by the vexing and heartbreaking decisions Facebook has made that represent significant setbacks for civil rights.”
  • The National Security Commission on Artificial Intelligence (NSCAI) released a white paper titled “The Role of AI Technology in Pandemic Response and Preparedness” that “outlines a series of investments and initiatives that the United States must undertake to realize the full potential of AI to secure our nation against pandemics.” NSCAI noted its previous two white papers:
  • Secretary of Defense Mark Esper announced that Chief Technology Officer Michael J.K. Kratsios has “been designated to serve as Acting Under Secretary of Defense for Research and Engineering” even though he does not have a degree in science. The last Under Secretary held a PhD. However, Kratsios worked for venture capitalist Peter Thiel who backed President Donald Trump when he ran for office in 2016.
  • The United States’ Department of Transportation’s Federal Railroad Administration (FRA) issued research “to develop a cyber security risk analysis methodology for communications-based connected railroad technologies…[and] [t]he use-case-specific implementation of the methodology can identify potential cyber attack threats, system vulnerabilities, and consequences of the attack– with risk assessment and identification of promising risk mitigation strategies.”
  • In a blog post, a National Institute of Standards and Technology (NIST) economist asserted cybercrime may be having a much larger impact on the United States’ economy than previously thought:
    • In a recent NIST report, I looked at losses in the U.S. manufacturing industry due to cybercrime by examining an underutilized dataset from the Bureau of Justice Statistics, which is the most statistically reliable data that I can find. I also extended this work to look at the losses in all U.S. industries. The data is from a 2005 survey of 36,000 businesses with 8,079 responses, which is also by far the largest sample that I could identify for examining aggregated U.S. cybercrime losses. Using this data, combined with methods for examining uncertainty in data, I extrapolated upper and lower bounds, putting 2016 U.S. manufacturing losses to be between 0.4% and 1.7% of manufacturing value-added or between $8.3 billion and $36.3 billion. The losses for all industries are between 0.9% and 4.1% of total U.S. gross domestic product (GDP), or between $167.9 billion and $770.0 billion. The lower bound is 40% higher than the widely cited, but largely unconfirmed, estimates from McAfee.
  • The Government Accountability Office (GAO) advised the Federal Communications Commission (FCC) that it needs a comprehensive strategy for implementing 5G across the United States. The GAO concluded
    • FCC has taken a number of actions regarding 5G deployment, but it has not clearly developed specific and measurable performance goals and related measures–with the involvement of relevant stakeholders, including National Telecommunications and Information Administration (NTIA)–to manage the spectrum demands associated with 5G deployment. This makes FCC unable to demonstrate whether the progress being made in freeing up spectrum is achieving any specific goals, particularly as it relates to congested mid-band spectrum. Additionally, without having established specific and measurable performance goals with related strategies and measures for mitigating 5G’s potential effects on the digital divide, FCC will not be able to assess the extent to which its actions are addressing the digital divide or what actions would best help all Americans obtain access to wireless networks.
  • The Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) issued “Time Guidance for Network Operators, Chief Information Officers, and Chief Information Security Officers” “to inform public and private sector organizations, educational institutions, and government agencies on time resilience and security practices in enterprise networks and systems…[and] to address gaps in available time testing practices, increasing awareness of time-related system issues and the linkage between time and cybersecurity.”
  • Fifteen Democratic Senators sent a letter to the Department of Defense, Office of the Director of National Intelligence (ODNI), Department of Homeland Security (DHS), Federal Bureau of Investigations (FBI), and U.S. Cyber Command, urging them “to take additional measures to fight influence campaigns aimed at disenfranchising voters, especially voters of color, ahead of the 2020 election.” They called on these agencies to take “additional measures:”
    • The American people and political candidates are promptly informed about the targeting of our political processes by foreign malign actors, and that the public is provided regular periodic updates about such efforts leading up to the general election.
    • Members of Congress and congressional staff are appropriately and adequately briefed on continued findings and analysis involving election related foreign disinformation campaigns and the work of each agency and department to combat these campaigns.
    • Findings and analysis involving election related foreign disinformation campaigns are shared with civil society organizations and independent researchers to the maximum extent which is appropriate and permissible.
    • Secretary Esper and Director Ratcliffe implement a social media information sharing and analysis center (ISAC) to detect and counter information warfare campaigns across social media platforms as authorized by section 5323 of the Fiscal Year 2020 National Defense Authorization Act.
    • Director Ratcliffe implement the Foreign Malign Influence Response Center to coordinate a whole of government approach to combatting foreign malign influence campaigns as authorized by section 5322 of the Fiscal Year 2020 National Defense Authorization Act.
  • The Information Technology and Innovation Foundation (ITIF) unveiled an issue brief “Why New Calls to Subvert Commercial Encryption Are Unjustified” arguing “that government efforts to subvert encryption would negatively impact individuals and businesses.” ITIF offered these “key takeaways:”
    • Encryption gives individuals and organizations the means to protect the confidentiality of their data, but it has interfered with law enforcement’s ability to prevent and investigate crimes and foreign threats.
    • Technological advances have long frustrated some in the law enforcement community, giving rise to multiple efforts to subvert commercial use of encryption, from the Clipper Chip in the 1990s to the San Bernardino case two decades later.
    • Having failed in these prior attempts to circumvent encryption, some law enforcement officials are now calling on Congress to invoke a “nuclear option”: legislation banning “warrant-proof” encryption.
    • This represents an extreme and unjustified measure that would do little to take encryption out of the hands of bad actors, but it would make commercial products less secure for ordinary consumers and businesses and damage U.S. competitiveness.
  • The White House released an executive order in which President Donald Trump determined “that the Special Administrative Region of Hong Kong (Hong Kong) is no longer sufficiently autonomous to justify differential treatment in relation to the People’s Republic of China (PRC or China) under the particular United States laws and provisions thereof set out in this order.” Trump further determined “the situation with respect to Hong Kong, including recent actions taken by the PRC to fundamentally undermine Hong Kong’s autonomy, constitutes an unusual and extraordinary threat, which has its source in substantial part outside the United States, to the national security, foreign policy, and economy of the United States…[and] I hereby declare a national emergency with respect to that threat.” The executive order would continue the Administration’s process of changing policy to ensure Hong Kong is treated the same as the PRC.
  • President Donald Trump also signed a bill passed in response to the People’s Republic of China (PRC) passing legislation the United States and other claim will strip Hong Kong of the protections the PRC agreed to maintain for 50 years after the United Kingdom (UK) handed over the city. The “Hong Kong Autonomy Act” “requires the imposition of sanctions on Chinese individuals and banks who are included in an annual State Department list found to be subverting Hong Kong’s autonomy” according to the bill’s sponsor Representative Brad Sherman (D-CA).
  • Representative Stephen Lynch, who chairs House Oversight and Reform Committee’s National Security Subcommittee, sent letters to Apple and Google “after the Office of the Director of National Intelligence (ODNI) and the Federal Bureau of Investigation (FBI) confirmed that mobile applications developed, operated, or owned by foreign entities, including China and Russia, could potentially pose a national security risk to American citizens and the United States” according to his press release. He noted in letters sent by the technology companies to the Subcommittee that:
    • Apple confirmed that it does not require developers to submit “information on where user data (if any such data is collected by the developer’s app) will be housed” and that it “does not decide what user data a third-party app can access, the user does.”
    • Google stated that it does “not require developers to provide the countries in which their mobile applications will house user data” and acknowledged that “some developers, especially those with a global user base, may store data in multiple countries.”
    • Lynch is seeking “commitments from Apple and Google to require information from application developers about where user data is stored, and to make users aware of that information prior to downloading the application on their mobile devices.”
  • Minnesota Attorney General Keith Ellison announced a settlement with Frontier Communications that “concludes the three major investigations and lawsuits that the Attorney General’s office launched into Minnesota’s major telecoms providers for deceptive, misleading, and fraudulent practices.” The Office of the Attorney General (OAG) stated
    • Based on its investigation, the Attorney General’s Office alleged that Frontier used a variety of deceptive and misleading practices to overcharge its customers, such as: billing customers more than they were quoted by Frontier’s agents; failing to disclose fees and surcharges in its sales presentations and advertising materials; and billing customers for services that were not delivered.
    • The OAG “also alleged that Frontier sold Minnesotans expensive internet services with so-called “maximum speed” ratings that were not attainable, and that Frontier improperly advertised its service as “reliable,” when in fact it did not provide enough bandwidth for customers to consistently receive their expected service.”
  • The European Data Protection Board (EDPB) issued guidelines “on the criteria of the Right to be Forgotten in the search engines cases under the GDPR” that “focuses solely on processing by search engine providers and delisting requests  submitted by data subjects” even Article 17 of the General Data Protection Regulation applies to all data controllers. The EDPB explained “This paper is divided into two topics:
    • The first topic concerns the grounds a data subject can rely on for a delisting request sent to a search engine provider pursuant to Article 17.1 GDPR.
    • The second topic concerns the exceptions to the Right to request delisting according to Article 17.3 GDPR.
  • The Australian Competition & Consumer Commission (ACCC) “is seeking views on draft Rules and accompanying draft Privacy Impact Assessment that authorise third parties who are accredited at the ‘unrestricted’ level to collect Consumer Data Right (CDR) data on behalf of another accredited person.” The ACCC explained “[t]his will allow accredited persons to utilise other accredited parties to collect CDR data and provide other services that facilitate the provision of goods and services to consumers.” In a March explanatory statement, the ACCC stated “[t]he CDR is an economy-wide reform that will apply sector-by-sector, starting with the banking sector…[and] [t]he objective of the CDR is to provide individual and business consumers (consumers) with the ability to efficiently and conveniently access specified data held about them by businesses (data holders), and to authorise the secure disclosure of that data to third parties (accredited data recipients) or to themselves.” The ACCC noted “[t]he CDR is regulated by both the ACCC and the Office of the Australian Information Commissioner (OAIC) as it concerns both competition and consumer matters as well as the privacy and confidentiality of consumer data.” Input is due by 20 July.
  • Office of the Inspector General (OIG) for the Department of the Interior (Interior) found that even though the agency spends $1.4 billion annually on cybersecurity “[g]uarding against increasing cybersecurity threats” remains one of Interior’s top challenges. The OIG asserted Interior “continues to struggle to implement an enterprise information technology (IT) security program that balances compliance, cost, and risk while enabling bureaus to meet their diverse missions.”
  • In a summary of its larger investigation into “Security over Information Technology Peripheral Devices at Select Office of Science Locations,” the Department of Energy’s Office of the Inspector General (OIG) that “identified weaknesses related to access controls and configuration settings” for peripheral devices (e.g. thumb drives, printers, scanners and other connected devices)  “similar in type to those identified in prior evaluations of the Department’s unclassified cybersecurity program.”
  • The House Homeland Security Committee’s Cybersecurity, Infrastructure Protection, and Innovation Subcommittee Ranking Member John Katko (R-NY) “a comprehensive national cybersecurity improvement package” according to his press release, consisting of these bills:
    • The “Cybersecurity and Infrastructure Security Agency Director and Assistant Directors Act:”  This bipartisan measure takes steps to improve guidance and long-term strategic planning by stabilizing the CISA Director and Assistant Directors positions. Specifically, the bill:
      • Creates a 5-year term for the CISA Director, with a limit of 2 terms. The term of office for the current Director begins on date the Director began to serve.
      • Elevates the Director to the equivalent of a Deputy Secretary and Military Service Secretaries.
      • Depoliticizes the Assistant Director positions, appointed by the Secretary of the Department of Homeland Security (DHS), categorizing them as career public servants. 
    • The “Strengthening the Cybersecurity and Infrastructure Security Agency Act of 2020:” This measure mandates a comprehensive review of CISA in an effort to strengthen its operations, improve coordination, and increase oversight of the agency. Specifically, the bill:
      • Requires CISA to review how additional appropriations could be used to support programs for national risk management, federal information systems management, and public-private cybersecurity and integration. It also requires a review of workforce structure and current facilities and projected needs. 
      • Mandates that CISA provides a report to the House and Senate Homeland Committees within 1-year of enactment. CISA must also provide a report and recommendations to GSA on facility needs. 
      • Requires GSA to provide a review to the Administration and House and Senate Committees on CISA facilities needs within 30-days of Congressional report. 
    • The “CISA Public-Private Talent Exchange Act:” This bill requires CISA to create a public-private workforce program to facilitate the exchange of ideas, strategies, and concepts between federal and private sector cybersecurity professionals. Specifically, the bill:
      • Establishes a public-private cyber exchange program allowing government and industry professionals to work in one another’s field.
      • Expands existing private outreach and partnership efforts. 
  • The Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) is ordering United States federal civilian agencies “to apply the July 2020 Security Update for Windows Servers running DNS (CVE-2020-1350), or the temporary registry-based workaround if patching is not possible within 24 hours.” CISA stated “[t]he software update addresses a significant vulnerability where a remote attacker could exploit it to take control of an affected system and run arbitrary code in the context of the Local System Account.” CISA Director Christopher Krebs explained “due to the wide prevalence of Windows Server in civilian Executive Branch agencies, I’ve determined that immediate action is necessary, and federal departments and agencies need to take this remote code execution vulnerability in Windows Server’s Domain Name System (DNS) particularly seriously.”
  • The United States (US) Department of State has imposed “visa restrictions on certain employees of Chinese technology companies that provide material support to regimes engaging in human rights abuses globally” that is aimed at Huawei. In its statement, the Department stated “Companies impacted by today’s action include Huawei, an arm of the Chinese Communist Party’s (CCP) surveillance state that censors political dissidents and enables mass internment camps in Xinjiang and the indentured servitude of its population shipped all over China.” The Department claimed “[c]ertain Huawei employees provide material support to the CCP regime that commits human rights abuses.”
  • Earlier in the month, the US Departments of State, Treasury, Commerce, and of Homeland Security issued an “advisory to highlight the harsh repression in Xinjiang.” The agencies explained
    • Businesses, individuals, and other persons, including but not limited to academic institutions, research service providers, and investors (hereafter “businesses and individuals”), that choose to operate in Xinjiang or engage with entities that use labor from Xinjiang elsewhere in China should be aware of reputational, economic, and, in certain instances, legal, risks associated with certain types of involvement with entities that engage in human rights abuses, which could include Withhold Release Orders (WROs), civil or criminal investigations, and export controls.
  • The United Kingdom’s National Cyber Security Centre (NCSC), Canada’s Communications  Security Establishment (CSE), United States’ National Security Agency (NSA) and the United States’ Department of Homeland Security’s Cybersecurity and Infrastructure Security  Agency (CISA) issued a joint advisory on a Russian hacking organization’s efforts have “targeted various organisations involved in COVID-19 vaccine development in Canada, the United States and the United Kingdom, highly likely with the intention of stealing information and intellectual property relating to the development and testing of COVID-19 vaccines.” The agencies named APT29 (also known as ‘the Dukes’ or ‘Cozy Bear’), “a cyber espionage group, almost certainly part of the Russian intelligence services,” as the culprit behind “custom malware known as ‘WellMess’ and ‘WellMail.’”
    • This alert follows May advisories issued by Australia, the US, and the UK on hacking threats related to the pandemic. Australia’s Department of Foreign Affairs and Trade (DFAT) and the Australian Cyber Security Centre (ACSC) issued “Advisory 2020-009: Advanced Persistent Threat (APT) actors targeting Australian health sector organisations and COVID-19 essential services” that asserted “APT groups may be seeking information and intellectual property relating to vaccine development, treatments, research and responses to the outbreak as this information is now of higher value and priority globally.” CISA and NCSC issued a joint advisory for the healthcare sector, especially companies and entities engaged in fighting COVID-19. The agencies stated that they have evidence that Advanced Persistent Threat (APT) groups “are exploiting the COVID-19 pandemic as part of their cyber operations.” In an unclassified public service announcement, the Federal Bureau of Investigation (FBI) and CISA named the People’s Republic of China as a nation waging a cyber campaign against U.S. COVID-19 researchers. The agencies stated they “are issuing this announcement to raise awareness of the threat to COVID-19-related research.”
  • The National Initiative for Cybersecurity Education (NICE) has released a draft National Institute of Standards and Technology (NIST) Special Publication (SP) for comment due by 28 August. Draft NIST Special Publication (SP) 800-181 Revision 1, Workforce Framework for Cybersecurity (NICE Framework) that features several updates, including:
    • an updated title to be more inclusive of the variety of workers who perform cybersecurity work,
    • definition and normalization of key terms,
    • principles that facilitate agility, flexibility, interoperability, and modularity,
    • introduction of competencies,
  • Representatives Glenn Thompson (R-PA), Collin Peterson (D-MN), and James Comer (R-KY) sent a letter to Federal Communications Commission (FCC) “questioning the Commission’s April 20, 2020 Order granting Ligado’s application to deploy a terrestrial nationwide network to provide 5G services.”
  • The European Commission (EC) is asking for feedback on part of its recently released data strategy by 31 July. The EC stated it is aiming “to create a single market for data, where data from public bodies, business and citizens can be used safely and fairly for the common good…[and] [t]his initiative will draw up rules for common European data spaces (covering areas like the environment, energy and agriculture) to:
    • make better use of publicly held data for research for the common good
    • support voluntary data sharing by individuals
    • set up structures to enable key organisations to share data.
  • The United Kingdom’s Parliament is asking for feedback on its legislative proposal to regulate Internet of Things (IoT) devices. The Department for Digital, Culture, Media & Sport explained “the obligations within the government’s proposed legislative framework would fall mainly on the manufacturer if they are based in the UK, or if not based in the UK, on their UK representative.” The Department is also “developing an enforcement approach with relevant stakeholders to identify an appropriate enforcement body to be granted day to day responsibility and operational control of monitoring compliance with the legislation.” The Department also touted the publishing of the European Telecommunications Standards Institute’s (ETSI) “security baseline for Internet-connected consumer devices and provides a basis for future Internet of Things product certification schemes.”
  • Facebook issued a white paper, titled “CHARTING A WAY FORWARD: Communicating Towards People-Centered and Accountable Design About Privacy,” in which the company states its desire to be involved in shaping a United States privacy law (See below for an article on this). Facebook concluded:
    • Facebook recognizes the responsibility we have to make sure that people are informed about the data that we collect, use, and share.
    • That’s why we support globally consistent comprehensive privacy laws and regulations that, among other things, establish people’s basic rights to be informed about how their information is collected, used, and shared, and impose obligations for organizations to do the same, including the obligation to build internal processes that maintain accountability.
    • As improvements to technology challenge historic approaches to effective communications with people about privacy, companies and regulators need to keep up with changing times.
    • To serve the needs of a global community, on both the platforms that exist now and those that are yet to be developed, we want to work with regulators, companies, and other interested third parties to develop new ways of informing people about their data, empowering them to make meaningful choices, and holding ourselves accountable.
    • While we don’t have all the answers, there are many opportunities for businesses and regulators to embrace modern design methods, new opportunities for better collaboration, and innovative ways to hold organizations accountable.
  • Four Democratic Senators sent Facebook a letter “about reports that Facebook has created fact-checking exemptions for people and organizations who spread disinformation about the climate crisis on its social media platform” following a New York Times article this week on the social media’s practices regarding climate disinformation. Even though the social media giant has moved aggressively to take down false and inaccurate COVID-19 posts, climate disinformation lives on the social media platform largely unmolested for a couple of reasons. First, Facebook marks these sorts of posts as opinion and take the approach that opinions should be judged under an absolutist free speech regime. Moreover, Facebook asserts posts of this sort do not pose any imminent harm and therefore do not need to be taken down. Despite having teams of fact checkers to vet posts of demonstrably untrue information, Facebook chooses not to, most likely because material that elicits strong reactions from users drive engagement that, in turn, drives advertising dollars. Senators Elizabeth Warren (D-WA), Tom Carper (D-DE), Sheldon Whitehouse (D-R.I.) and Brian Schatz (D-HI) argued “[i]f Facebook is truly “committed to fighting the spread of false news on Facebook and Instagram,” the company must immediately acknowledge in its fact-checking process that the climate crisis is not a matter of opinion and act to close loopholes that allow climate disinformation to spread on its platform.” They posed a series of questions to Facebook CEO Mark Zuckerberg on these practices, requesting answers by 31 July.
  • A Canadian court has found that the Canadian Security Intelligence Service (CSIS) “admittedly collected information in a manner that is contrary to this foundational commitment and then relied on that information in applying for warrants under the Canadian Security Intelligence Service Act, RSC 1985, c C-23 [CSIS Act]” according to a court summary of its redacted decision. The court further stated “[t]he Service and the Attorney General also admittedly failed to disclose to the Court the Service’s reliance on information that was likely collected unlawfully when seeking warrants, thereby breaching the duty of candour owed to the Court.” The court added “[t]his is not the first time this Court has been faced with a breach of candour involving the Service…[and] [t]he events underpinning this most recent breach were unfolding as recommendations were being implemented by the Service and the Attorney General to address previously identified candour concerns.” CSIS was found to have illegally collected and used metadata in a 2016 case ion its conduct between 2006-2016. In response to the most recent ruling, CSIS is vowing to implement a range of reforms. The National Security and Intelligence Review Agency (NSIRA) is pledging the same.
  • The United Kingdom’s National Police Chiefs’ Council (NPCC) announced the withdrawal of “[t]he ‘Digital device extraction – information for complainants and witnesses’ form and ‘Digital Processing Notice’ (‘the relevant forms’) circulated to forces in February 2019 [that] are not sufficient for their intended purpose.” In mid-June, the UK’s data protection authority, the Information Commissioner’s Office (ICO) unveiled its “finding that police data extraction practices vary across the country, with excessive amounts of personal data often being extracted, stored, and made available to others, without an appropriate basis in existing data protection law.” This withdrawal was also due, in part, to a late June Court of Appeal decision.  
  • A range of public interest and advocacy organizations sent a letter to Speaker of the House Nancy Pelosi (D-CA) and House Minority Leader Kevin McCarthy (R-CA) noting “there are intense efforts underway to do exactly that, via current language in the House and Senate versions of the FY2021 National Defense Authorization Act (NDAA) that ultimately seek to reverse the FCC’s recent bipartisan and unanimous approval of Ligado Networks’ regulatory plans.” They urged them “not endorse efforts by the Department of Defense and its allies to veto commercial spectrum authorizations…[and][t]he FCC has proven itself to be the expert agency on resolving spectrum disputes based on science and engineering and should be allowed to do the job Congress authorized it to do.” In late April, the FCC’s “decision authorize[d] Ligado to deploy a low-power terrestrial nationwide network in the 1526-1536 MHz, 1627.5-1637.5 MHz, and 1646.5-1656.5 MHz bands that will primarily support Internet of Things (IoT) services.” The agency argued the order “provides regulatory certainty to Ligado, ensures adjacent band operations, including Global Positioning System (GPS), are sufficiently protected from harmful interference, and promotes more efficient and effective use of [the U.S.’s] spectrum resources by making available additional spectrum for advanced wireless services, including 5G.”
  • The European Data Protection Supervisor (EDPS) rendered his opinion on the European Commission’s White Paper on Artificial Intelligence: a European approach to excellence and trust and recommended the following for the European Union’s (EU) regulation of artificial intelligence (AI):
    • applies both to EU Member States and to EU institutions, offices, bodies and agencies;
    • is designed to protect from any negative impact, not only on individuals, but also on communities and society as a whole;
    • proposes a more robust and nuanced risk classification scheme, ensuring any significant potential harm posed by AI applications is matched by appropriate mitigating measures;
    • includes an impact assessment clearly defining the regulatory gaps that it intends to fill.
    • avoids overlap of different supervisory authorities and includes a cooperation mechanism.
    • Regarding remote biometric identification, the EDPS supports the idea of a moratorium on the deployment, in the EU, of automated recognition in public spaces of human features, not only of faces but also of gait, fingerprints, DNA, voice, keystrokes and other biometric or behavioural signals, so that an informed and democratic debate can take place and until the moment when the EU and Member States have all the appropriate safeguards, including a comprehensive legal framework in place to guarantee the proportionality of the respective technologies and systems for the specific use case.
  • The Bundesamt für Verfassungsschutz (BfV), Germany’s domestic security agency, released a summary of its annual report in which it claimed:
    • The Russian Federation, the People’s Republic of China, the Islamic Republic of Iran and the Republic of Turkey remain the main countries engaged in espionage activities and trying to exert influence on Germany.
    • The ongoing digital transformation and the increasingly networked nature of our society increases the potential for cyber attacks, worsening the threat of cyber espionage and cyber sabotage.
    • The intelligence services of the Russian Federation and the People’s Republic of China in particular carry out cyber espionage activities against German agencies. One of their tasks is to boost their own economies with the help of information gathered by the intelligence services. This type of information-gathering campaign severely threatens the success and development opportunities of German companies.
    • To counteract this threat, Germany has a comprehensive cyber security architecture in place, which is operated by a number of different authorities. The BfV plays a major role in investigating and defending against cyber threats by detecting attacks, attributing them to specific attackers, and using the knowledge gained from this to draw up prevention strategies. The National Cyber Response Centre, in which the BfV plays a key role, was set up to consolidate the co-operation between the competent agencies. The National Cyber Response Centre aims to optimise the exchange of information between state agencies and to improve the co-ordination of protective and defensive measures against potential IT incidents.

Further Reading

  • Trump confirms cyberattack on Russian trolls to deter them during 2018 midterms” – The Washington Post. In an interview with former George W. Bush speechwriter Marc Thiessen, President Donald Trump confirmed he ordered a widely reported retaliatory attack on the Russian Federation’s Internet Research Agency as a means of preventing interference during the 2018 mid-term election. Trump claimed this attack he ordered was the first action the United States took against Russian hacking even though his predecessor warned Russian President Vladimir Putin to stop such activities and imposed sanctions at the end of 2016. The timing of Trump’s revelation is interesting given the ongoing furor over reports of Russian bounties paid to Taliban fighters for killing Americans the Trump Administration may have known of but did little or nothing to stop.
  • Germany proposes first-ever use of EU cyber sanctions over Russia hacking” – Deutsche Welle. Germany is looking to use the European Union’s (EU) cyber sanctions powers against Russia for its alleged 2015 16 GB exfiltration of data from the Bundestag’s systems, including from Chancellor Angela Merkel’s office. Germany has been alleging that Fancy Bear (aka APT28) and Russia’s military secret service GRU carried out the attack. Germany has circulated its case for sanctions to other EU nations and EU leadership. In 2017, the European Council declared “[t]he EU diplomatic response to malicious cyber activities will make full use of measures within the Common Foreign and Security Policy, including, if necessary, restrictive measures…[and] [a] joint EU response to malicious cyber activities would be proportionate to the scope, scale, duration, intensity, complexity, sophistication and impact of the cyber activity.”
  • Wyden Plans Law to Stop Cops From Buying Data That Would Need a Warrant” – VICE. Following on a number of reports that federal, state, and local law enforcement agencies are essentially sidestepping the Fourth Amendment through buying location and other data from people’s smartphones, Senator Ron Wyden (D-OR) is going to draft legislation that would seemingly close what he, and other civil libertarians, are calling a loophole to the warrant requirement.
  • Amazon Backtracks From Demand That Employees Delete TikTok” – The New York Times. Amazon first instructed its employees to remove ByteDance’s app, TikTok, on 11 July from company devices and then reversed course the same day, claiming the email had been erroneously sent out. The strange episode capped another tumultuous week for ByteDance as the Trump Administration is intensifying pressure in a number of ways on the company which officials claim is subject to the laws of the People’s Republic of China and hence must share information with the government in Beijing. ByteDance counters the app marketed in the United States is through a subsidiary not subject to PRC law. ByteDance also said it would no longer offer the app in Hong Kong after the PRC change in law has extended the PRC’s reach into the former British colony. TikTok was also recently banned in India as part of a larger struggle between India and he PRC. Additionally, the Democratic National Committee warned staff about using the app this week, too.
  • Is it time to delete TikTok? A guide to the rumors and the real privacy risks.” – The Washington Post. A columnist and security specialist found ByteDance’s app vacuums up information from users, but so does Facebook and other similar apps. They scrutinized TikTok’s privacy policy and where the data went, and they could not say with certainty that it goes to and stays on servers in the US and Singapore. 
  • California investigating Google for potential antitrust violations” – Politico. California Attorney General Xavier Becerra is going to conduct his own investigation of Google aside and apart from the investigation of the company’s advertising practices being conducted by virtually every other state in the United States. It was unclear why Becerra opted against joining the larger probe launched in September 2019. Of course, the Trump Administration’s Department of Justice is also investigating Google and could file suit as early as this month.
  • How May Google Fight an Antitrust Case? Look at This Little-Noticed Paper” – The New York Times. In a filing with the Australian Competition and Consumer Commission (ACCC), Google claimed it does not control the online advertising market and it is borne out by a number of indicia that argue against a monopolistic situation. The company is likely to make the same case to the United States’ government in its antitrust inquiry. However, similar arguments did not gain tractions before the European Commission, which levied a €1.49 billion for “breaching EU antitrust rules” in March 2019.
  •  “Who Gets the Banhammer Now?” – The New York Times. This article examines possible motives for the recent wave of action by social media platforms to police a fraction of the extreme and hateful speech activists and others have been asking them to take down for years. This piece makes the argument that social media platforms are businesses and operate as such and expecting them to behave as de facto public squares dedicated to civil political and societal discourse is more or less how we ended up where we are.
  • TikTok goes tit-for-tat in appeal to MPs: ‘stop political football’ – The Australian. ByteDance is lobbying hard in Canberra to talk Ministers of Parliament out of possibly banning TikTok like the United States has said it is considering. While ByteDance claims the data collected on users in Australia is sent to the US or Singapore, some experts are arguing just to maintain and improve the app would necessarily result in some non-People’s Republic of China (PRC) user data making its way back to the PRC. As Australia’s relationship with the PRC has grown more fraught with allegations PRC hackers infiltrated Parliament and the Prime Minister all but saying PRC hackers were targeting hospitals and medical facilities, the government in Canberra could follow India’s lead and ban the app.
  • Calls for inquiry over claims Catalan lawmaker’s phone was targeted” – The Guardian. British and Spanish newspapers are reporting that an official in Catalonia who favors separating the region from Spain may have had his smartphone compromised with industrial grade spyware typically used only by law enforcement and counterterrorism agencies. The President of the Parliament of Catalonia Roger Torrent claims his phone was hacked for domestic political purposes, which other Catalan leaders argued, too. A spokesperson for the Spanish government said “[t]he government has no evidence that the speaker of the Catalan parliament has been the victim of a hack or theft involving his mobile.” However, the University of Toronto’s CitizenLab, the entity that researched and claimed that Israeli firm NSO Group’s spyware was deployed via WhatsApp to spy on a range of journalists, officials, and dissidents, often by their own governments, confirmed that Torrent’s phone was compromised.
  • While America Looks Away, Autocrats Crack Down on Digital News Sites” – The New York Times. The Trump Administration’s combative relationship with the media in the United States may be encouraging other nations to crack down on digital media outlets trying to hold those governments to account.
  •  “How Facebook Handles Climate Disinformation” – The New York Times. Even though the social media giant has moved aggressively to take down false and inaccurate COVID-19 posts, climate disinformation lives on the social media platform largely unmolested for a couple of reasons. First, Facebook marks these sorts of posts as opinion and take the approach that opinions should be judged under an absolutist free speech regime. Moreover, Facebook asserts posts of this sort do not pose any imminent harm and therefore do not need to be taken down. Despite having teams of fact checkers to vet posts of demonstrably untrue information, Facebook chooses not to, most likely because material that elicits strong reactions from users drive engagement that, in turn, drives advertising dollars.
  • Here’s how President Trump could go after TikTok” – The Washington Post. This piece lays out two means the Trump Administration could employ to press ByteDance in the immediate future: use of the May 2019 Executive Order “Securing the Information and Communications Technology and Services Supply Chain” or the Committee on Foreign Investment in the United States process examining ByteDance of the app Music.ly that became TikTok. Left unmentioned in this article is the possibility of the Federal Trade Commission (FTC) examining its 2019 settlement with ByteDance to settle violations of the “Children’s Online Privacy Protection Act” (COPPA).
  • You’re Doomscrolling Again. Here’s How to Snap Out of It.” – The New York Times. If you find yourself endlessly looking through social media feeds, this piece explains why and how you might stop doing so.
  • UK selling spyware and wiretaps to 17 repressive regimes including Saudi Arabia and China” – The Independent. There are allegations that the British government has ignored its own regulations on selling equipment and systems that can be used for surveillance and spying to other governments with spotty human rights records. Specifically, the United Kingdom (UK) has sold £75m to countries non-governmental organizations (NGO) are rated as “not free.” The claims include nations such as the People’s Republic of China (PRC), the Kingdom of Saudi Arabia, Bahrain, and others. Not surprisingly, NGOs and the minority Labour party are calling for an investigation and changes.
  • Google sued for allegedly tracking users in apps even after opting out” – c/net. Boies Schiller Flexner filed suit in what will undoubtedly seek to become a class action suit over Google’s alleged continuing to track users even when they turned off tracking features. This follows a suit filed by the same firm against Google in June, claiming its browser Chrome still tracks people when they switch to incognito mode.
  • Secret Trump order gives CIA more powers to launch cyberattacks” – Yahoo! News. It turns out that in addition to signing National Security Presidential Memorandum (NSPM) 13 that revamped and eased offensive cyber operations for the Department of Defense, President Donald Trump signed a presidential finding that has allowed the Central Intelligence Agency (CIA) to launch its own offensive cyber attacks, mainly at Russia and Iran, according to unnamed former United States (US) officials according to this blockbuster story. Now, the decision to commence with an attack is not vetted by the National Security Council; rather, the CIA makes the decision. Consequently, there have been a number of attacks on US adversaries that until now have not been associated with the US. And, the CIA is apparently not informing the National Security Agency or Cyber Command of its operations, raising the risk of US cyber forces working at cross purposes or against one another in cyberspace. Moreover, a recently released report blamed the lax security environment at the CIA for a massive exfiltration of hacking tools released by Wikileaks. 
  • Facebook’s plan for privacy laws? ‘Co-creating’ them with Congress” – Protocol. In concert with the release of a new white paper, Facebook Deputy Chief Privacy Officer Rob Sherman sat for an interview in which he pledged the company’s willingness to work with Congress to co-develop a national privacy law. However, he would not comment on any of the many privacy bills released thus far or the policy contours of a bill Facebook would favor except for advocating for an enhanced notice and consent regime under which people would be better informed about how their data is being used. Sherman also shrugged off suggestions Facebook may not be welcome given its record of privacy violations. Finally, it bears mention that similar efforts by other companies at the state level have not succeeded as of yet. For example, Microsoft’s efforts in Washington state have not borne fruit in the passage of a privacy law.
  • Deepfake used to attack activist couple shows new disinformation frontier” – Reuters. We are at the beginning of a new age of disinformation in which fake photographs and video will be used to wage campaigns against nations, causes, and people. An activist and his wife were accused of being terrorist sympathizers by a university student who apparently was an elaborate ruse for someone or some group looking to defame the couple. Small errors gave away the ruse this time, but advances in technology are likely to make detection all the harder.
  • Biden, billionaires and corporate accounts targeted in Twitter hack” – The Washington Post. Policymakers and security experts were alarmed when the accounts of major figures like Bill Gates and Barack Obama were hacked yesterday by some group seeking to sell bitcoin. They argue Twitter was lucky this time and a more ideologically motivated enemy may seek to cause havoc, say on the United States’ coming election. A number of experts are claiming the penetration of the platform must have been of internal controls for so many high profile accounts to be taken over at the same time.
  • TikTok Enlists Army of Lobbyists as Suspicions Over China Ties Grow” – The New York Times. ByteDance’s payments for lobbying services in Washington doubled between the last quarter of 2019 and thirst quarter of 2020, as the company has retained more than 35 lobbyists to push back against the Trump Administration’s rhetoric and policy changes. The company is fighting against a floated proposal to ban the TikTok app on national security grounds, which would cut the company off from another of its top markets after India banned it and scores of other apps from the People’s Republic of China. Even if the Administration does not bar use of the app in the United States, the company is facing legislation that would ban its use on federal networks and devices that will be acted upon next week by a Senate committee. Moreover, ByteDance’s acquisition of the app that became TikTok is facing a retrospective review of an inter-agency committee for national security considerations that could result in an unwinding of the deal. Moreover, the Federal Trade Commission (FTC) has been urged to review ByteDance’s compliance with a 2019 settlement that the company violated regulations protecting the privacy of children that could result in multi-billion dollar liability if wrongdoing is found.
  • Why Google and Facebook Are Racing to Invest in India” – Foreign Policy. With New Delhi banning 59 apps and platforms from the People’s Republic of China (PRC), two American firms have invested in an Indian giant with an eye toward the nearly 500 million Indians not yet online. Reliance Industries’ Jio Platforms have sold stakes to Google and Facebook worth $4.5 billion and $5.7 billion that gives them prized positions as the company looks to expand into 5G and other online ventures. This will undoubtedly give a leg up to the United States’ online giants in vying with competitors to the world’s second most populous nation.
  • “Outright Lies”: Voting Misinformation Flourishes on Facebook” – ProPublica. In this piece published with First Draft, “a global nonprofit that researches misinformation,” an analysis of the most popular claims made about mail voting show that many of them are inaccurate or false, thus violating the platforms terms of services yet Facebook has done nothing to remove them or mark them as inaccurate until this article was being written.
  • Inside America’s Secretive $2 Billion Research Hub” – Forbes. Using contract information obtained through Freedom of Information requests and interviews, light is shined on the little known non-profit MITRE Corporation that has been helping the United States government address numerous technological problems since the late 1950’s. The article uncovers some of its latest, federally funded projects that are raising eyebrows among privacy advocates: technology to life people’s fingerprints from social media pictures, technology to scan and copy Internet of Things (IoT) devices from a distance, a scanner to read a person’s DNA, and others.
  • The FBI Is Secretly Using A $2 Billion Travel Company As A Global Surveillance Tool” – Forbes. In his second blockbuster article in a week, Forbes reporter Thomas Brewster exposes how the United States (US) government is using questionable court orders to gather travel information from the three companies that essentially provide airlines, hotels, and other travel entities with back-end functions with respect to reservations and bookings. The three companies, one of whom, Sabre is a US multinational, have masses of information on you if you have ever traveled, and US law enforcement agencies, namely the Federal Bureau of Investigation, is using a 1789 statute to obtain orders all three companies have to obey for information in tracking suspects. Allegedly, this capability has only been used to track terror suspects but will now reportedly be used for COVID-19 tracking.
  • With Trump CIA directive, the cyber offense pendulum swings too far” – Yahoo! News. Former United States (US) National Coordinator for Security, Infrastructure Protection, and Counter-terrorism Richard Clarke argues against the Central Intelligence Agency (CIA) having carte blanche in conducting cyber operations without the review or input of other federal agencies. He suggests that the CIA in particular, and agencies in general, tend to push their authority to the extreme, which in this case could lead to incidents and lasting precedents in cyberspace that may haunt the US. Clarke also intimated that it may have been the CIA and not Israel that launched cyber attacks on infrastructure facilities in Tehran this month and last.

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2020. 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.

National Cyber Director Hearing

The primary committee of jurisdiction over a bill to create a White House Cyber Director held a hearing on the ramifications of creating just such a position.  

First things first, if you would like to receive my Technology Policy Update, email me. You can find some of these Updates from 2019 and 2020 here.

On 14 July, the House Oversight and Reform Committee held a virtual hearing to discuss the recently introduced “National Cyber Director Act” (H.R.7331) that would implement one of the Cyberspace Solarium Commission’s (CSC) most significant recommendations. Representative James Langevin (D-RI), who served on the CSC, introduced the bill a few weeks ago when it appeared clear that neither Armed Services Committee will include the CSC’s recommendation that a position be established inside the Executive Office of the President of a National Cyber Director to coordinate much of the United States’ cyber policy that would need to be confirmed by the Senate. Langevin and a number of others submitted an amendment to the House Rules Committee for consideration of the “William M. (Mac) Thornberry National Defense Authorization Act (NDAA) for Fiscal Year 2021” (H.R.6395) that would add H.R.7331 to the House’s FY 2021 NDAA. It is possible this amendment is made in order and will be debated on the House floor when the chamber turns to H.R.6395, which could happen as soon as next week.

The holding of this hearing is likely part of an effort to convince House Democratic Leadership and the House Rules and Armed Services Committees of the support for H.R.7331 so that it can be debated during consideration of the FY 2021 NDAA. The chair of the House Oversight and Reform Committee cosponsored Langevin’s amendment as did a number of Republicans, demonstrating its bipartisan nature. Also, having held a hearing at which a number of witnesses endorsed the idea will lend further weight to it being allowed to be offered to the annual Department of Defense policy package.

The Senate’s NDAA does not include language establishing a National Cyber Director position. Rather, the “National Defense Authorization Act for Fiscal Year 2021“ (S.4049) would require “the  Secretary  of  Defense,  in  coordination  with  the Secretary  of  Homeland  Security,  shall  seek  to  enter  into  an  agreement  with  an  independent  organization  with  relevant expertise in cyber policy and governmental organization  to  conduct  and  complete  an  assessment  of  the  feasibility and advisability of establishing a National Cyber Director.” It is possible that CSC co-chair Senator Angus King (I-ME) succeeds in getting this recommendation included in the Senate’s FY 2021 NDAA when the body continues with debate next week.

Chair Carolyn Maloney (D-NY) stated

Cyberattacks are a critical, complex, prevalent, and growing threat to the nation’s safety and economic security, touching nearly every aspect of our lives. This assessment was upheld by recent findings from the U.S. Cyberspace Solarium Commission, which was established by the 2019 National Defense Authorization Act to review the state of our cybersecurity posture and develop bipartisan solutions for defending America against cyberthreats.  This commission of Congressional, Executive Branch, and private sector cybersecurity leaders sounded the alarm that, in addition to millions of intrusions that disrupt operations in America on a daily basis, we remain vulnerable to catastrophic attacks on critical infrastructure and economic systems that could cause widespread damage and death.

Maloney noted “[a] number of the commission’s recommendations fall within the legislative jurisdiction of this Committee…[and] [t]his includes one that has sparked a high level of interest on both sides of the aisle—the recommendation for a centralized cybersecurity position at the White House to develop and streamline the federal government’s strategy, coordination, and response to cyberthreats.” She said that “[t]his role was first formalized during the George W. Bush Administration, and then elevated and expanded during the Obama Administration…[b]ut in 2018, then-National Security Adviser John Bolton eliminated the role, reportedly to cut “another layer of bureaucracy.”

Maloney said that “we will review H.R. 7331, which would implement the Commission’s recommendation to establish a National Cyber Director in the Executive Office of the President.” She said that “[t]his new position would restore that cyber coordination and planning function at the White House…[and] [i]n addition, for the first time, it would be backed with resources and statutory authority to lead strategic planning efforts, review cybersecurity budgets, and coordinate national incident response.” Maloney stated “[a] challenge as complex and pervasive as cybersecurity requires that our government be strategic, organized, and ready…[and] Democrats and Republicans agree we need a National Cyber Director to ensure we are fully prepared for, and coordinated in, our response to cyberattacks as our nation fights this silent war.” She explained “[o]ur mission today is to gain a detailed understanding of the threats we face, and to thoroughly examine H.R. 7331 as the vehicle for preparing our country against those threats.”

Ranking Member James Comer (R-KY) said the federal cyber domain is dispersed with varying jurisdictions and expertise among agencies organized to fight cyber-crime, defend national security, and support the private sector’s critical cyber infrastructure. He noted the increasingly reliance in the US on technology and growing inter-connected nature of the American economy. Comer said foreign actors, terrorist groups, domestic agitators, and criminal enterprises all have a vested interest in exploiting US networks. Comer said the remote operations of the pandemic have created new cyber vulnerabilities that malicious actors are taking advantage of. He added the same threats face private sector and state, local, tribal, and territorial governments. Comer stressed that fostering relationships across the private sector and state and local partners, vital cyber threat information can be shared that helps secure critical infrastructure.

Comer noted the witnesses have vast experience in combatting cyber threats from nations like the People’s Republic of China (PRC) that has historically hacked into agencies like the Federal Deposit Insurance Corporation, stolen intellectual property, and paid professors and researchers for research and development information. He stated he would welcome the opportunity to work with Democrats to hold the PRC accountable for these bad acts as well as their deceptive tactics over the course of the COVID-19 pandemic. Comer said the present hearing would, instead, examine a proposal to create a National Cyber Director. He stressed that Members have a duty to be good stewards of taxpayer dollars and not create more bureaucracy. Comer commended the Trump’s Administration’s performance in fending off threats to medical and health facilities and to teleworkers during the pandemic.

Comer asked whether it is truly necessary to establish a new position to coordinate cybersecurity, and, if so, would this official actually have the authority necessary to execute her responsibilities. Moreover, will other stakeholders fall in line and work in harmony, he asked. Comer said it is already he case the multiple federal agencies have cybersecurity jurisdiction and wondered whether another official would help the US government’s cyber posture. He expressed his concern that the bill may create a duplicative, bureaucratic layer of government that will hinder future responses to cyber-attacks.

Representatives and CSC Members James Langevin (D-RI) and Mike Gallagher (R-WI) claimed

First and foremost, the Executive Branch must establish a National Cyber Director to centralize and coordinate the cybersecurity mission at the national level. The National Cyber Director would work among Federal departments and agencies to bring coherence in both in the development of cybersecurity policy and strategy and in its execution. The position would provide clear leadership in the White House and signal cybersecurity is an enduring priority in U.S. national security strategy.

Langevin and Gallagher stated “[l]ooking at the history and the current structure of the Executive Branch, four clear institutional challenges emerge:

  • First, the Federal government lacks consistent, institutionalized leadership in the White House on cybersecurity strategy and policy.
  • Second, due to the absence of a consistent advocate, cybersecurity is inconsistently prioritized in the context of national security.
  • Third, the United States lacks a coordinated, cohesive, and clear strategic vision for cyber.
  • Fourth, the lack of centralized Executive Branch leadership complicates and prevents effective congressional oversight. In the March 2020 Commission report, the Commission recognized the need for a single individual at the highest level in the Federal government to take on these responsibilities.

Langevin and Gallagher explained

On the issue of whether to recommend the creation of new Executive Branch structures, or strengthen the existing structures, the Commission explored several different options. These models included the creation of a new cabinet department for cyber led by a Secretary, an independent agency for cyber led by a Director reporting to an existing cabinet department, an equivalent to a Homeland Security Advisor for cyber within the National Security Council, or a new office within the White House Executive Office of the President (EOP) led by a Director. Ultimately, the Commission decided that the Federal government would be better served by strengthening existing department and agency efforts in cybersecurity, including strengthening CISA and Sector-Specific Agencies, rather than the creation of a new department. While the creation of a new cabinet department or independent agency would give the position gravitas, the Commission recognized the protracted development of a new department would prevent, or even eliminate, much-needed near-term progress.

Cyber Threat Alliance President and Chief Executive Officer Michael Daniel claimed “we have reached the point where making more than incremental progress will prove difficult unless we address at least four impediments:

  • First, cybersecurity’s cross-cutting nature does not fit with the US government’s bureaucratic structure, making the issue difficult to deal with during policy development. 
  • Second, agencies are not incentivized to sustain the degree of coordination required for effective cybersecurity over the long term. 
  • Third, a lack of central coordination hinders effective incident response actions. 
  • Fourth, cybersecurity’s complexity and unusual nature make it tough for the President and other senior leaders to tackle without access to expertise. 

Daniel stated “[a]ddressing these impediments would be challenging under normal circumstances, but this Administration has chosen to take a step backward by eliminating the cybersecurity coordinator position at the White House, which makes it even harder.” He said that “[c]learly, no single policy action will solve these problems…[and] [t]hey are too complicated for a one-shot solution.” Daniel said “[t]hat said, creating a position like a National Cyber Director along the lines the Cyberspace Solarium Commission recommends or that Representative Langevin has proposed is a necessary part of the solution.”

Daniel asserted

  • Cybersecurity is a strategic, national level problem that defies easy categorization.  Cyberspace and the Internet are permanent features of our society, economy, public safety, and national security.  We will not “solve” our cybersecurity problems; cyber threats are now a permanent feature in society and international relations.  Instead, we will manage and mitigate the threat.  Thus, we need a strategic level leader focused on this problem with a government-wide perspective.  Moreover, we will need a national cyber director for the long-term. 
  • The EOP is the only part of the executive branch with a sufficiently broad scope to look across all the different aspects of cybersecurity.  It is the only part of the executive branch that can overcome the “you’re not the boss of me” effect and incentivize agencies to engage in regular, sustained, and intense coordination. It is the logical place to organize a cyber crisis response because it can serve as a neutral, inter-agency hub and activate resources across the entire Federal government. Finally, it is the primary organization for direct Presidential advisors.

Daniel said that “[a]s Congress debates this issue, I would urge it to consider certain parameters in crafting the position: The NCD Office should be big enough to run effective processes, but not so big that it tries to be operational.” He claimed “[i]f we want the office to succeed, then it cannot be so small that the staff do not have time to do anything right…[and] [o]n the other hand, it should not be so large that its staff are tempted to try to run operations directly.” Daniel stated that “[t]he NCD Office should integrate tightly with OMB’s budget process and NSC’s policy process, otherwise it will be irrelevant.”

Daniel stated

  • The NCD Office should have insight into and a policy oversight role for all Federal government cyber functions, including military, intelligence, or law enforcement activities; this insight must extend to offensive cyber operations. We cannot exclude those activities from the NCD’s purview and expect the position to succeed. For the record, I strongly support the independence of indictment and prosecutorial decisions from the White House, but that separation does not mean the NCD should not understand what law enforcement operations are occurring or influence our strategic level policy toward cybercrime. If the NCD only has oversight and coordination roles for network defense activities and working with the private sector, then the position would largely duplicate the CISA director, which we do not need.
  • NCD staff should not participate in policy execution. Law enforcement agencies investigates and prosecutes crime, intelligence agencies collect information, the military conducts offensive cyber operations, and the sector specific agencies work with their industries. Policy execution should remain the domain of the departments and agencies.
  • The office will need a clear relationship with the Federal Chief Information Security Officer (CISO). This existing office has worked hard to improve the security of Federal networks. The NCD’s office will need to work closely with the Federal CISO to ensure that Federal agencies are following the general guidance and advice the government gives the private sector. We must walk our talk.

Tenable Chairman and CEO Amit Yoran stated

Beyond the authorities already included in H.R. 7331, I recommend additional authorities for the National Cyber Director that would improve the nation’s cybersecurity risk management for both the public and private sectors. These additional authorities include developing a national encryption policy, managing the Vulnerabilities Equities Process (VEP), coordinating with regulatory entities, driving cybersecurity workforce development, and leading all international cybersecurity efforts, to include the development of international cyber strategies and international engagement.

Yoran added that

The Cyberspace Solarium Report also included recommendations on how to further strengthen the Cybersecurity Infrastructure Security Agency (CISA) in order to ensure the national resilience of critical infrastructure, promote a more secure cyber ecosystem and serve as the central civilian authority to support federal, state, local and private sector cybersecurity efforts. CISA has established information sharing capabilities across the government, provides technical assistance to cybersecurity operators in the public and private sectors, and engages stakeholders both inside and outside the federal government. However, CISA’s role has clear limitations:

  • CISA’s convening power is not widely understood or consistently recognized.
  • CISA does not have jurisdiction over law enforcement, the Department of Defense or federal intelligence agencies, which are all critical pieces of a unified approach to U.S. cyber defense, nor are these organizations required to collaborate and share their activities with CISA.
  • CISA does not have the budget or the analytic capacity to assess, plan for and lead a unified effort to mitigate national systemic cyber risk.

Yoran said that “[t]he creation of the National Cybersecurity Director role should be done in conjunction with efforts to empower and appropriately resource CISA as a critical player to improve the nation’s cybersecurity.” He contended “[t]o strengthen CISA, Congress should elevate the Director position as recommended by the Cyberspace Solarium Commission and provide additional funding and program support that will enable the organization to enhance current operations.” Yoran stated that “[a]n expanded budget would also allow CISA to increase funding for the Continuous Diagnostics and Mitigation (CDM) program in order to meet surge capacity to protect .gov networks, support state and local cybersecurity networks and systems, and expand other programs that support the private sector, including many of the public-private operations that comprise the U.S. critical infrastructure.”

George Mason University’s National Security Institute Founder & Executive Director Jamil Jaffer stated

  • Given the general agreement that such [cyber] coordination is advisable, and indeed, necessary, one needs wonder why the Commission’s approach might be controversial.  The first and most obvious issue that would likely trouble any White House—regardless of political party and relationship with Congress—is the idea of having yet another Senate-confirmed appointee in the White House Office. 
  • The challenge, of course, with a National Cyber Director, particularly as it relates to a position in the White House Office and as described in H.R. 7331, is that this individual would have responsibilities that are generally understood by Presidents to be squarely in their control, namely matters related to the execution of the President’s textual Commander-in-Chief responsibilities. And while Congress may certainly argue that it has a number of textual commitments in this area also, like the declaration of war authority and the provisioning of the armed forces, the reality is that Presidents have long taken the view that matters of national security decisionmaking, particularly in the White House, are firmly committed to their discretion.  Thus, it is likely that any President, regardless of party or relationship with Congress, would be strongly opposed to Senate-confirmation of such an individual and, if such confirmation was ultimately required, it may actually undermine rather than buttress the individual position’s influence and role within the White House.
  • Moreover, making such a position Senate-confirmed essentially seeks to elevate it to an Assistant to the President role, namely a principal officer inside the White House Office. The challenge with doing so, of course, is that the vast majority of issues such an individual would deal with likely also fall squarely within the ambit of the existing responsibilities of the Assistant to the President for National Security (i.e., the National Security Advisor). 
  • The legislation clearly envisions the former approach—that is, direct advice to the President—which could very well create its own set of coordination and integration challenges within the White House and with the interagency. This challenge is enhanced, in particular, when it comes to areas of clear overlap between existing White House officials like the National Security Advisor (e.g., in the case of offensive and defensive cyber operations), as well as the Director of OMB (e.g., in the case of budgetary authority). Where the situation becomes even more problematic, however, is where the NCD’s assigned authorities appear to directly conflict with the authorities of another cabinet-level official. 
  • Finally, the size of the office likewise presents its own challenges.  While it is true that the USTR has an office of over 200 individuals and OMB has nearly 500, even at 75 authorized individuals, when one adds in the authority for other outside experts, consultants, and other government agency personnel in support, this number is likely to be viewed as too high for the mission.  This is particularly the case given that such an office would be roughly1/3 the size of the entire National Security Council staff, which itself is currently seen as fairly bloated (even after the Trump-directed staff reductions in 2019)

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2020. 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.

Further Reading and Other Developments (13 June)

First things first, if you would like to receive my Technology Policy Update, email me. You can find some of these Updates from 2019 and 2020 here.

Other Developments

  • The University of Toronto’s Citizen Lab alleged that an Indian information technology (IT) firm has been running a hacking for hire operation possibly utilized by multinationals to target non-profits, journalists, and advocacy groups:
    • Dark Basin is a hack-for-hire group that has targeted thousands of individuals and hundreds of institutions on six continents. Targets include advocacy groups and journalists, elected and senior government officials, hedge funds, and multiple industries.
    • Dark Basin extensively targeted American nonprofits, including organisations working on a campaign called #ExxonKnew, which asserted that ExxonMobil hid information about climate change for decades.
    • We also identify Dark Basin as the group behind the phishing of organizations working on net neutrality advocacy, previously reported by the Electronic Frontier Foundation.
  • The Massachusetts Institute of Technology (MIT) and the University of Michigan (UM) “released a report on the security of OmniBallot, an Internet voting and ballot delivery system produced by Democracy Live…[that] has been deployed in Delaware, West Virginia, and other jurisdictions.” MIT and UM “The full technical report contains detailed recommendations for jurisdictions, but here’s what individual voters can do to help reduce risks to their security and privacy:
    • Your safest option is to avoid using OmniBallot. Either vote in person or request a mail-in absentee ballot, if you can. Mail-in ballots are a reasonably safe option, provided you check them for accuracy and adhere to all relevant deadlines.
    • If you can’t do that, your next-safest option is to use OmniBallot to download a blank ballot and print it, mark it by hand, and mail it back or drop it off. Always double-check that you’ve marked your ballot correctly, and confirm the mailing address with your local jurisdiction. 
    • If you are unable to mark your ballot by hand, OmniBallot can let you mark it on-screen. However, this option (as used in Delaware and West Virginia) will send your identity and secret ballot selections over the Internet to Democracy Live’s servers even if you return your ballot through the mail. This increases the risk that your choices may be exposed or manipulated, so we recommend that voters only use online marking as a last resort. If you do mark your ballot online, be sure to print it, carefully check that the printout is marked the way you intended, and physically return it.
    • If at all possible, do not return your ballot through OmniBallot’s website or by email or fax. These return modes cause your vote to be transmitted over the Internet, or via networks attached to the Internet, exposing the election to a critical risk that votes will be changed, at wide scale, without detection. Recent recommendations from DHS, the bi-parisan findings of the Senate Intelligence Committee, and the consensus of the National Academies of Science, Engineering, and Medicine accord with our assessment that returning ballots online constitutes a severe security risk.
  • The “Justice in Policing Act of 2020” (H.R.7120/S.3912) was introduced this week in response to the protests and disparate policing practices towards African Americans primarily and would bar the use of facial recognition technology for body cameras, patrol car cameras, or other cameras authorized and regulated under the bill. The House Oversight and Reform Committee has held a series of hearings this Congress on facial recognition technology, with Members on both sides of the aisle saying they want legislation regulating the government’s use of it. As of yet, no such legislation has been introduced. Facial recognition technology language was also a major factor in privacy legislation dying last year in Washington state and was outright removed to avoid the same fate this year.
  • The Government Accountability Office (GAO) released “ELECTRONIC HEALTH RECORDS: Ongoing Stakeholder Involvement Needed in the Department of Veterans Affairs’ Modernization Effort” a week after Secretary of Veterans Affairs Robert Wilkie informed the House Appropriations Committee that the electronic health record rollout has been paused due to COVID-19. Nevertheless, the GAO concluded:
    • VA met its schedule for making the needed system configuration decisions that would enable the department to implement its new EHR system at the first VA medical facility, which was planned for July 2020. In addition, VA has formulated a schedule for making the remaining EHR system configuration decisions before implementing the system at additional facilities planned for fall 2020. VA’s EHRM program was generally effective in establishing decisionmaking procedures that were consistent with applicable federal standards for internal control.
    • However, VA did not always ensure the involvement of relevant stakeholders, including medical facility clinicians and staff, in the system configuration decisions. Specifically, VA did not always clarify terminology and include adequate detail in descriptions of local workshop sessions to medical facility clinicians and staff to ensure relevant representation at local workshop meetings. Participation of such stakeholders is critical to ensuring that the EHR system is configured to meet the needs of clinicians and support the delivery of clinical care.
  • The GAO recommended
    • For implementation of the EHR system at future VA medical facilities, we recommend that the Secretary of VA direct the EHRM Executive Director to clarify terminology and include adequate detail in descriptions of local workshop sessions to facilitate the participation of all relevant stakeholders including medical facility clinicians and staff. (Recommendation 1)
  • Europol and the European Union Intellectual Property Office released a report to advise law enforcement agencies and policymakers “in the shape of a case book and presents case examples showing how intellectual property (IP) crime is linked to other forms of criminality, including money laundering, document fraud, cybercrime, fraud, drug production and trafficking and terrorism.”
  • The New York University Stern Center for Business and Human Rights released its latest report on social media titled “Who Moderates the Social Media Giants? A Call to End Outsourcing” that calls for major reforms in how these companies moderate content so as to improve the online ecosystem and the conditions, pay, and efficiacy of those actually doing the work. The report claimed “[d]espite the centrality of content moderation, however, major social media companies have marginalized the people who do this work, outsourcing the vast majority of it to third-party vendors…[and] [a] close look at this situation reveals three main problems:
    • In some parts of the world distant from Silicon Valley, the marginalization of content moderation has led to social media companies paying inadequate attention to how their platforms have been misused to stoke ethnic and religious violence. This has occurred in places ranging from Myanmar to Ethiopia. Facebook, for example, has expanded into far-flung markets, seeking to boost its user-growth numbers, without having sufficient moderators in place who understand local languages and cultures.
    • The peripheral status of moderators undercuts their receiving adequate counseling and medical care for the psychological side effects of repeated exposure to toxic online content. Watching the worst social media has to offer leaves many moderators emotionally debilitated. Too often, they don’t get the support or benefits they need and deserve.
    • The frequently chaotic outsourced environments in which moderators work impinge on their decisionmaking. Disputes with quality-control reviewers consume time and attention and contribute to a rancorous atmosphere.
  • The National Institute of Standards and Technology (NIST) “requests review and comments on the four-volume set of documents: Special Publication (SP) 800-63-3 Digital Identity Guidelines, SP 800-63A Enrollment and Identity Proofing, SP 800-63B Authentication and Lifecycle Management, and SP 800-63C Federation and Assertions…[that] presents the controls and technical requirements to meet the digital identity management assurance levels specified in each volume.” NIST “is requesting comments on the document in response to agency and industry implementations, industry and market innovation and the current threat environment.” Comments are due by 10 August.
  • The Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) updated its Cyber Risks to Next Generation 911 White Paper and released Cyber Risks to 911: Telephony Denial of Service and PSAP Ransomware Poster. CISA explained:
    • Potential cyber risks to Next Generation 9-1-1 (NG9-1-1) systems do not undermine the benefits of NG9-1-1. Nevertheless, cyber risks present a new level of exposure that PSAP administrators must understand and actively manage as a part of a comprehensive risk management program. Systems are already under attack. As cyber threats grow in complexity and sophistication, attacks could be more severe against NG9-1-1 systems as attackers can launch multiple distributed attacks with greater automation from a broader geography and against more targets.  This document provides an overview of the cyber risk landscape, offers an approach for assessing and managing risk, and provides additional cybersecurity resources. 
  • The Government Accountability Office (GAO) released a number of technology reports:
    • The GAO recommended that the Department of Energy’s (DOE) National Nuclear Security Administration (NNSA) “should incorporate additional management controls to better oversee and coordinate NNSA’s microelectronics activities. Such management controls could include investing the microelectronics coordinator with increased responsibility and authority, developing an overarching management plan, and developing a mission need statement and a microelectronics requirements document.”
  • The GAO found that
    • The Department of Homeland Security (DHS) has taken steps to implement selected leading practices in its transition from waterfall, an approach that historically delivered useable software years after program initiation, to Agile software development, which is focused on incremental and rapid delivery of working software in small segments. As shown below, this quick, iterative approach is to deliver results faster and collect user feedback continuously.
    • DHS has fully addressed one of three leading practice areas for organization change management and partially addressed the other two. Collectively, these practices advise an organization to plan for, implement, and measure the impact when undertaking a significant change. The department has fully defined plans for transitioning to Agile development. DHS has partially addressed implementation—the department completed 134 activities but deferred roughly 34 percent of planned activities to a later date. These deferred activities are in progress or have not been started. With respect to the third practice, DHS clarified expected outcomes for the transition, such as reduced risk of large, expensive IT failures. However, these outcomes are not tied to target measures. Without these, DHS will not know if the transition is achieving its desired results.
    • DHS has also addressed four of the nine leading practices for adopting Agile software development. For example, the department has modified its acquisition policies to support Agile development methods. However, it needs to take additional steps to, among other things, ensure all staff are appropriately trained and establish expectations for tracking software code quality. By fully addressing leading practices, DHS can reduce the risk of continued problems in developing and acquiring current, as well as, future IT systems.
  • The GAO rated “[t]he Department of Defense’s (DOD) current initiative to transition to Internet Protocol version 6 (IPv6), which began in April 2017, follows at least two prior attempts to implement IPv6 that were halted by DOD.”
    • In February 2019, DOD released its own IPv6 planning and implementation guidance that listed 35 required transition activities, 18 of which were due to be completed before March 2020. DOD completed six of the 18 activities as of March 2020. DOD officials acknowledged that the department’s transition time frames were optimistic; they added that they had thought that the activities’ deadlines were reasonable until they started performing the work. Without an inventory, a cost estimate, or a risk analysis, DOD significantly reduced the probability that it could have developed a realistic transition schedule. Addressing these basic planning requirements would supply DOD with needed information that would enable the department to develop realistic, detailed, and informed transition plans and time frames.

Further Reading

  • Amid Pandemic and Upheaval, New Cyberthreats to the Presidential Election” – The New York Times. Beyond disinformation and misinformation campaigns, United States’ federal and state officials are grappling with a range of cyber-related threats including some states’ insistence on using online voting, which the Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) deemed “high risk” in an unreleased assessment the agency softened before distribution to state lection officials. There are also worries that Russian or other nation-state hackers could assess voting databases in ways that would call election day results into question, or other hackers could break in, lock, and then ransom such data bases. CISA and other stakeholders have articulated concerns about the security of voting machines, apps, and systems currently used by states. 
  • Microsoft won’t sell police its facial-recognition technology, following similar moves by Amazon and IBM” – The Washington Post. The three tech giants responded to pressure from protestors to stop selling facial recognition technology to police departments with Microsoft being the latest to make this pledge. The companies have said they will not sell this technology until there is a federal law regulating it. The American Civil Liberties Union said in its press release “Congress and legislatures nationwide must swiftly stop law enforcement use of face recognition, and companies like Microsoft should work with the civil rights community  — not against it — to make that happen…[and] [t]his includes Microsoft halting its current efforts to advance legislation that would legitimize and expand the police use of facial recognition in multiple states nationwide.” The above mentioned “Justice in Policing Act of 2020” (H.R.7120/S.3912) would not regulate the technology per se but would ban its use from body and car cameras. However, the companies said nothing about selling this technology to federal agencies such as US Immigration and Customs Enforcement. And, IBM, unlike Amazon and Microsoft, announced it was leaving the facial recognition field altogether. However, AI Clearview, the controversial facial recognition firm, has not joined this pledge.
  • ICE Outlines How Investigators Rely on Third-Party Facial Recognition Services” – Nextgov. In a recently released privacy impact assessment, US Immigration and Customs Enforcement’s Homeland Security Investigations (HSI) explained its use of US and state government and commercial recognition databases and technologies. The agency claimed this is to be used only after agents have exhausted more traditional means of identifying suspects and others and only if relevant to the investigation. The agency claimed “ICE HSI primarily uses this law enforcement tool to identify victims of child exploitation and human trafficking, subjects engaged in the online and sexual exploitation of children, subjects engaged in financial fraud schemes, identity and benefit fraud, and those identified as members of transnational criminal organizations.” Given what some call abuses and others call mistakes in US surveillance programs, it is probable ICE will exceed the limits it is setting on the use of this technology absent meaningful, independent oversight.
  • Zoom confirms Beijing asked it to suspend activists over Tiananmen Square meetings” – Axios. In a statement, Zoom admitted it responded to pressure from the People’s Republic of China (PRC) to shut down 4 June meetings to commemorate Tiananmen Square inside and outside the PRC, including in the United States if enough PRC nationals were participating. It is not hard to imagine the company being called to task in Washington and in western Europe for conforming to Beijing’s wishes. The company seems to be vowing to develop technology to block participants by country as opposed to shutting down meetings and a process to consider requests by nations to block certain content illegal within their borders.
  • Coronavirus conspiracy theorists threaten 5G cell towers, DHS memo warns” – CyberScoop. The Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) has warned telecommunications companies they should establish or better still already have in place security protocols to protect equipment, especially 5G gear, from sabotage arising from the conspiracy theory that 5G transmission either compromises immune systems making one more susceptible to COVID-19 or actually spreads the virus. There have been a spate of attacks in the United Kingdom, and a number of Americans are advocating for this theory, including actor Woody Harrelson.  
  • Police Officers’ Personal Info Leaked Online” – Associated Press. At the same time police are facing protestors in the streets of many American cities and towns, the sensitive personal information of some officers have been posted online, possibly putting them and their families at risk.
  • Facebook Helped the FBI Hack a Child Predator” – Vice’s Motherboard. In a story apparently leaked by Facebook, it is revealed that the company hired a third-party hacker to help reveal a nefarious, technologically adept person who was terrorizing and extorting female minors through the development of a zero-day exploit. This is supposedly the first time Facebook engaged in conduct such as this to help law enforcement authorities. The company revealed it routinely tracks problematic users, including those exploiting children. This article would seem tailor-made to push back on the narrative being propagated by the Department of Justice and other nations’ law enforcement agencies that tech companies opposing backdoors in encrypted systems helps sexual predators. There are also the usual concerns that any exploit of a platform or technology people use to remain private will ultimately be used broadly by law enforcement agencies often to the detriment of human rights activists, dissidents, and journalists.
  • Amazon, Facebook and Google turn to deep network of political allies to battle back antitrust probes” – The Washington Post. These tech companies are utilizing means beyond traditional lobbying and public relations to wage the battle against US and state governments investigating them for possible antitrust and anticompetitive practices.
  • One America News, the Network That Spreads Conspiracies to the West Wing” – The New York Times. The upstart media outlet has received a boost in recent days by being promoted by President Donald Trump who quoted its as of yet unproven allegations that a Buffalo man knocked down by police was an antifa agitator. The outlet has received preferential treatment from the White House and is likely another means by which the White House will seek to get its message out.
  • EU says China behind ‘huge wave’ of Covid-19 disinformation” – The Guardian. European Commission Vice President Vĕra Jourová called out the People’s Republic of China (PRC) along with the Russian Federation for spreading prodigious amounts of disinformation in what is likely a shift for Brussels towards a more adversarial stance versus the PRC. As recently as March, an European Union body toned down a report on PRC activities, but this development seems to be a change of course.

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2020. 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.

Image by Gerd Altmann from Pixabay

Following Other Nations, Australia Warns Of Malicious Cyber Activity

Another Five Eyes nation details sustained cyber-attacks against healthcare and COVID-19 related entities.  

First things first, if you would like to receive my Technology Policy Update, email me. You can find some of these Updates from 2019 and 2020 here.

In the wake of similar statements by the American, British, Israeli, and other governments, Australia has warned of “malicious cyber actors are seeking to exploit the pandemic for their own gain.” In particular, Australia cautioned that “malicious cyber actors are seeking to damage or impair the operation of hospitals, medical services and facilities, and crisis response organisations outside of Australia.”

However, unlike a number of attributions alleged by the American government, naming the People’s Republic of China and the Democratic Republic of North Korea, Australia’s Department of Foreign Affairs and Trade (DFAT) and the Australian Cyber Security Centre (ACSC) did not attribute the malicious activity. Rather Australia’s Ambassador for Cyber Activities Dr. Tobias Feakin called “on all countries to cease immediately any cyber activity – or support for such activity – inconsistent with these commitments.” He also related his government’s urging of “all countries to exercise increased vigilance and take all reasonable measures to ensure malicious cyber activity is not emanating from their territory.”

The DFAT/ACSC statement follows previous warnings about cyber-attacks and hacking during the COVID-19 pandemic. On 8 May, ASCS issued “Advisory 2020-009: Advanced Persistent Threat (APT) actors targeting Australian health sector organisations and COVID-19 essential services” that asserted “APT groups may be seeking information and intellectual property relating to vaccine development, treatments, research and responses to the outbreak as this information is now of higher value and priority globally.” ASCS stated “[a]ccordingly, Australia’s health or research sectors could be at greater threat of being targeted, and potentially compromised, by malicious APT groups.” In late April, the ASCS issued a threat update aimed at “raising awareness of the evolving nature of COVID-19 related malicious cyber activity impacting Australians.”

Moreover, the Australian government has made its concerns know at the United Nations. DFAT claims to have folded its concerns about “this international activity” into its comments on pre-draft report of the United Nations’ Open-ended Working Group (OEWG).

Earlier this month, the Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) and the United Kingdom’s Government Communications Headquarters’ (GCHQ) National Cyber Security Centre (NCSC) issued a joint advisory for the healthcare sector, especially companies and entities engaged in fighting COVID-19. The agencies stated that they have evidence that Advanced Persistent Threat (APT) groups “are exploiting the COVID-19 pandemic as part of their cyber operations.” NCSC and CISA “highlight[] ongoing activity by APT groups against organisations involved in both national and international COVID-19 responses…[and] describe[] some of the methods these actors are using to target organisations and provides mitigation advice.” The entities being targeted include healthcare bodies, pharmaceutical companies, academia, medical research organisations, and local government. However, the agencies do not identify the APT groups or their countries of origin in the advisory. 

Last week, in an unclassified public service announcement, the Federal Bureau of Investigation (FBI) and CISA named the People’s Republic of China as a nation waging a cyber campaign against U.S. COVID-19 researchers. The agencies stated they “are issuing this announcement to raise awareness of the threat to COVID-19-related research.” The agencies said “[t]he FBI is investigating the targeting and compromise of U.S. organizations conducting COVID-19-related research by PRC-affiliated cyber actors and non-traditional collectors.” The FBI and CISA claimed that “[t]hese actors have been observed attempting to identify and illicitly obtain valuable intellectual property (IP) and public health data related to vaccines, treatments, and testing from networks and personnel affiliated with COVID-19-related research.” The agencies asserted “[t]he potential theft of this information jeopardizes the delivery of secure, effective, and efficient treatment options.” The FBI and CISA “urge all organizations conducting research in these areas to maintain dedicated cybersecurity and insider threat practices to prevent surreptitious review or theft of COVID-19-related material.”

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2020. 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.

Trump Administration Claims PRC Is Targeting COVID-19 Research Organizations

First things first, if you would like to receive my Technology Policy Update, email me. You can find some of these Updates from 2019 and 2020 here.

This week, the Trump Administration highlighted hacking by the People’s Republic of China (PRC) that targets entities researching COVID-19. This announcement is the latest in a string of public attributions made by the Trump Administration as part of its larger cybersecurity strategy. For example, the Administration identified “three malware variants—COPPERHEDGE, TAINTEDSCRIBE, and PEBBLEDASH—used by the North Korean government.” Nonetheless, this particular attribution also happens to dovetail, coincidentally or not, with the Trump Administration and Republican Party’s push to throw the focus on the PRC’s actions or inactions at the beginning of the COVID-19 pandemic in Wuhan, PRC.

In an unclassified public service announcement, the Federal Bureau of Investigation (FBI) and Cybersecurity and Infrastructure Security Agency (CISA) stated they “are issuing this announcement to raise awareness of the threat to COVID-19-related research.” The agencies said “[t]he FBI is investigating the targeting and compromise of U.S. organizations conducting COVID-19-related research by PRC-affiliated cyber actors and non-traditional collectors.” The FBI and CISA claimed that “[t]hese actors have been observed attempting to identify and illicitly obtain valuable

The Administration names the PRC as the nation trying to hack into COVID-19 research facilities.  

intellectual property (IP) and public health data related to vaccines, treatments, and testing from networks and personnel affiliated with COVID-19-related research.” The agencies asserted “[t]he potential theft of this information jeopardizes the delivery of secure, effective, and efficient treatment options.” The FBI and CISA “urge all organizations conducting research in these areas to maintain dedicated cybersecurity and insider threat practices to prevent surreptitious review or theft of COVID-19-related material” and made the following recommendations:

  • Assume that press attention affiliating your organization with COVID-19 related research will lead to increased interest and cyber activity.
  • Patch all systems for critical vulnerabilities, prioritizing timely patching for known vulnerabilities of internet-connected servers and software processing internet data.
  • Actively scan web applications for unauthorized access, modification, or anomalous activities.
  • Improve credential requirements and require multi-factor authentication.
  • Identify and suspend access of users exhibiting unusual activity.

CISA Director Christopher Krebs contended “China’s long history of bad behavior in cyberspace is well documented, so it shouldn’t surprise anyone they are going after the critical organizations involved in the nation’s response to the Covid-19 pandemic.” He stressed CISA “defend our interests aggressively.”

And, to no great surprise, the PRC denied the U.S.’s claims. A spokesperson for the PRC’s Foreign Ministry said:

We firmly oppose and fight all kinds of cyber-attacks conducted by hackers. We are leading the world in COVID-19 treatment and vaccine research. It is immoral to target China with rumors and slanders in the absence of any evidence.

Moreover, the PRC is not the only nation of being accused of trying to hack COVID-19 researchers. Iran has been accused of trying to get into a pharmaceutical company, Gilead’s systems to access any information on its efforts to develop a vaccine. An Iranian spokesperson was quoted as claiming “[t]he Iranian government does not engage in cyber warfare…[and] [c]yber activities Iran engages in are purely defensive and to protect against further attacks on Iranian infrastructure.”

Last week, CISA and the United Kingdom’s Government Communications Headquarters’ (GCHQ) National Cyber Security Centre (NCSC) issued a joint advisory for the healthcare sector, especially companies and entities engaged in fighting COVID-19. The agencies stated that they have evidence that Advanced Persistent Threat (APT) groups “are exploiting the COVID-19 pandemic as part of their cyber operations.” NCSC and CISA “highlight[] ongoing activity by APT groups against organisations involved in both national and international COVID-19 responses…[and] describe[] some of the methods these actors are using to target organisations and provides mitigation advice.” The entities being targeted include healthcare bodies, pharmaceutical companies, academia, medical research organisations, and local government. However, the agencies do not identify the APT groups or their countries of origin in the advisory. 

© Michael Kans, Michael Kans Blog and michaelkans.blog, 2019-2020. 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.